Davis, A. v. Panarella, M.

• Court: Superior Court of Pennsylvania
• Decided: September 19, 2022
• Docket: 2153 EDA 2021
• Status: Unpublished

Opinion

J-A17021-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ATTIKIS J. DAVIS AND KELLIE RAE : IN THE SUPERIOR COURT OF DAVIS : PENNSYLVANIA : : v. : : : MICHAEL PANARELLA AND : CHRISTINE A. PANARELLA : No. 2153 EDA 2021 : Appellants :

Appeal from the Judgment Entered October 8, 2021 In the Court of Common Pleas of Monroe County Civil Division at No(s): 003649-CV-2019

ATTIKIS J. DAVIS AND KELLIE RAE : IN THE SUPERIOR COURT OF DAVIS : PENNSYLVANIA : Appellant : : : v. : : : No. 2266 EDA 2021 MICHAEL PANARELLA AND : CHRISTINE A. PANARELLA :

Appeal from the Judgment Entered October 8, 2021 In the Court of Common Pleas of Monroe County Civil Division at No(s): 003649-CV-2019

BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 19, 2022

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A17021-22

In these cross-appeals,1 Michael Panarella and Christine A. Panarella

(the Panarellas) and Attikis J. Davis and Kellie Rae Davis (the Davises) appeal

from the judgment entered in favor of the Davises and against the Panarellas.

In the appeal at 2153 EDA 2021, the Panarellas challenge the trial court’s

calculation of damages and counsel fees, and in the cross-appeal at 2266 EDA

2021, the Davises contend that the trial court erred in failing to award punitive

damages against the Panarellas. After review, we affirm.

The trial court summarized the procedural history and made the

following findings of fact:

This matter came before the [c]ourt for a non-jury trial held on April 30, 2021. [The Davises] alleged that [the Panarellas] sold them real property without disclosing an encroachment of a portion of the driveway and landscaping on a neighboring lot. [The Davises] also alleged the neighboring lot, owned by the [Panarellas] was to be sold to [the Davises] under a separate agreement. [The Davises] filed a complaint alleging adverse possession, violation of the Real Estate Seller Disclosure Law (RESDL), fraud, nuisance, trespass, replevin, specific performance and breach of contract. The parties have now submitted briefs, having waived the time period for a decision.

FINDINGS OF FACT

1. [The Panarellas] were the owners of Lots 14 and 15 located at 229 Evergreen Court, Saylorsburg, Monroe County, Pennsylvania.

2. Lot 14 was a vacant lot and Lot 15 was improved with a house thereon, including a driveway and other outdoor improvements.

3. [The Panarellas] had listed the properties for sale at least three different times prior to June of 2017. ____________________________________________

1This Court consolidated these cross-appeals sua sponte, and designated the Panarellas as Appellants/Cross-Appellees and the Davises as Appellees/Cross- Appellants. Order, 12/21/21; Order, 1/31/22.

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4. [The Panarellas] had tried in the past to sell both of the properties together and at least one time listed and marketed them for sale together, consisting of a total of 3.64 acres.

5. Some time prior to June 2017, [the Panarellas] received a referral to James Galligan, a Keller Williams real estate agent located in Stroudsburg, PA, from Robert Pistone, a Keller Williams real estate agent located in Las Vegas, NV, where the [the Panarellas] had recently moved. Mr. Galligan and Mr. Pistone were both affiliated with Keller Williams and Mr. Pistone had received Mr. Galligan’s information as an agent in the Poconos where these lots are located.

6. While in Las Vegas for a seminar in May 2017, Mr. Galligan met with Mr. Pistone and Mrs. Panarella to discuss a potential marketing plan for [the Panarellas’] property.

7. Mr. Pistone recalled that there was a discussion at that meeting of [the Panarellas] wanting to sell both lots together.

8. Sometime thereafter, Mr. Galligan met Mr. Panarella at the house on Lot 15 to discuss a listing agreement. Mr. Galligan advised that the market might not be conducive to the price the [the Panarellas] wanted for both properties, and that [the Panarellas] could list Lot 15 for sale and try to offer Lot 14 to a prospective buyer of Lot 15 when they made an offer, or wait and sell it separately in the future.

9. Based upon that conversation, Mr. Galligan prepared a listing agreement in early June 2017 for the improved Lot 15 only and the [the Panarellas] signed that agreement.

10. Mr. Galligan proceeded to list the property on the Multiple Listing Service (MLS), and marketed it specifically as Lot 15, consisting of an improved 1.94 acre lot.

11. [The Panarellas] filled out and signed a Sellers Property Disclosure Statement (Disclosure Statement) on or about June 5, 2017.

12. The Disclosure Statement at paragraph 18(B), specifically asking whether [the Panarellas] were aware of any encroachments, boundary line disputes, or any shared common areas/driveways, was answered “No” by [the Panarellas].

13. At the time they filled out the Disclosure Statement, [the Panarellas] knew that a portion of their driveway, landscaping,

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retaining wall, and mailbox area encroached onto Lot 14 from Lot 15.

14. At the time they filled out the Disclosure Statement, and through August 2018, [the Panarellas] did not inform their real estate agent, Mr. Galligan, of the property encroachment from Lot 15 onto Lot 14.

15. If Mr. Galligan had been made aware of the encroachments he would have required that it be disclosed to potential buyers, and required that the lots be listed and sold together.

16. [The Davises] eventually became interested in the improved Lot 15 and were shown the property through their real estate agent, Jessica Keller.

17. Ms. Keller knew of no listing agreement that included Lot 14 being offered for sale with Lot 15, nor was it listed for sale together with Lot 15 in the MLS.

18. Ms. Keller subsequently learned of [the Panarellas’] ownership of Lot 14 through her own research and not because Lot 14 was listed in the MLS or presented as a package deal with Lot 15.

19. [The Davises] initially were only interested in purchasing the improved Lot 15 that was listed for sale in the MLS.

20. [The Davises] made an offer to purchase Lot 15 and [the Panarellas] issued a counteroffer at a higher price that also included Lot 14 in the sale.

21. [The Davises] were reluctant to purchase the vacant Lot 14 with Lot 15, but ultimately agreed to do so in order to meet the [the Panarellas’] demand in order to purchase Lot 15. The sale price for Lot 15 was $ 389,000 with closing on or before August 21, 2017. A separate installment agreement of sale was signed for vacant Lot 14 at a sale price of $25,000, with $500 down, $200 per month from September 21, 2017, and the balance due on or before August 21, 2018.

22. At no time prior to closing on Lot 15 on August 21, 2017 did [the Panarellas] advise either the [the Davises], [the Davises’] real estate agent, or [the Panarellas’] real estate agent, Mr. Galligan, that a portion of the driveway, landscaping, retaining wall and mailbox encroached from Lot 15 onto Lot 14.

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23. [The Davises] would not have purchased the properties if they had known of the encroachments prior to closing.

24. Prior to the closing on Lot 15, [the Davises] had a home inspection performed.

25. As a result of the home inspection, a verbal agreement was reached, as memorialized in emails between the real estate agents. [The Panarellas] agreed to remediate the radon levels, have the septic system pumped, and have the well “shocked” due to coliform.

26. A written addendum to the contract for the repairs was prepared and signed by the [the Davises], but the [the Panarellas] never signed it.

27. On Friday, August 18, 2017, just days prior to the closing on Lot 15, [the Davises] found out from their real estate agent that the [the Panarellas] had called [the Davises’] mortgage company, inquiring whether or not the agreed upon repairs had to be performed in order to obtain a “clear to close” from the lender.

28. Upon learning that [the Davises] already had a “clear to close” from the lender, the [the Panarellas] informed their real estate agent that they would not be completing the agreed upon repairs, and the [the Davises] were forced to purchase the property “as is” or forego the entire transaction.

29. [The Davises] elected to proceed with the purchase and the parties closed on the sale of Lot 15 on Monday, August 21, 2017, at which time the [the Panarellas] paid the cost to pump the septic system, Mr. Galligan paid to shock the well, and [the Davises] were left with the radon mitigation cost.

30. After closing on Lot 15, [the Davises] paid $857 for additional plumbing work related to the well, $1100 for a radon mitigation system, and $75 to spray for carpenter bees for a total of $2032.

31. [The Davises] proceeded to move into the residence on Lot 15, made payments on Lot 14, and erected a shed on Lot 14 along the property line.

32. [The Davises] made ten (10) monthly payments of $200 through July 2018 for the vacant Lot 14, having missed the June payment.

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33. [The Davises] also paid the 2018 property tax bill for Lot 14 at the request of the [the Panarellas].

34. On or about August 2, 2018, [the Davises] began leaving phone call messages and sending texts to [the Panarellas] requesting a six (6) month extension to close on Lot 14, and offering to double the monthly payment to $400 until closing.

35. [The Davises] paid $400 to [the Panarellas] on August 16, 2018, and left another message with [the Panarellas] repeating the request for an extension. At the time, they did not realize that one prior $200 payment had been missed, but this payment brought them current on the monthly payments under the installment agreement.

36. [The Panarellas] accepted all of the payments made by the [the Davises] totaling $2,400, together with the initial deposit of $500, for a total of $2,900, without declaring [the Davises] in default.

37. [The Panarellas] did not respond to the [the Davises’] requests to extend the closing date for Lot 14, and when the [the Davises] failed to close on or before August 21, 2018, as required in the installment agreement, [the Panarellas] notified [the Davises] they were in default and the agreement was terminated.

38. In [the Panarellas’] notification of default and termination, they indicated the property would be placed back on the market and that if [the Davises] still wanted to purchase Lot 14, the purchase price would now be $45,000. In a later phone call with [the Davises], the [the Panarellas] explained the increase in purchase price was due to the likely cost the [the Davises] would incur to remove the encroachments on Lot 14 if they did not purchase said lot.

39. Shortly thereafter, [the Panarellas] advised [the Davises] they would be erecting a fence along the property line of Lot 14 and Lot 15, and then did so about 20 days later. The fence effectively “fenced in” the [the Davises’] shed onto Lot 14. Although [the Davises] were able to remove contents of the shed before the fence was installed, they were unable to move the shed and a ramp to access the shed prior to the fence being installed.

40. On or about August 30, 2018, following a phone call with [the Panarellas], Mr. Galligan learned for the first time that a portion of the driveway, landscaping, retaining wall, and mailbox

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encroached onto Lot 14 from Lot 15. Mr. Galligan immediately advised his broker and [the Davises’] real estate agent.

41. Due to this new information, the [the Davises] engaged Frank Smith, Jr. to survey the lot line along Lots 14 and 15.

42. The survey revealed property boundary encroachments onto Lot 14 of the paved driveway, several paver areas, a ramp [the Davises] constructed to their shed on Lot 14, a small retaining wall, additional landscaping and the mailbox.

43. [The Davises] spent $972 erecting the ramp to their shed that the survey reveals is over the boundary line.

44. The driveway, pavers, retaining wall, landscaping and mailbox were all installed by or at the direction of the [the Panarellas].

45. [The Panarellas] obtained a cost estimate from Sugar Hollow to remove the areas of encroachment in the amount of $18,500.

46. [The Davises] were in the process of obtaining a permit to move the shed when [the Panarellas] erected the fence with no trespassing signs.

47. [The Davises] have had no access to their shed for nearly two (2) years and have been unable to move it due to the erection of the fence and no trespassing signs.

48. [The Panarellas] have demanded that [the Davises] remove the mailbox that [the Panarellas] had installed over the lot line onto Lot 14.

49. [The Panarellas] installed or directed installation of the driveway and other encroachments onto Lot 14 themselves, while owning both Lots 14 and 15. This was done at the time of or after building the house on Lot 15, which was completed in 2002.

50. [The Davises] have incurred attorney’s fees in this matter of $12,153 up to time of trial.

Trial Ct. Mem. and Order, 8/27/21, at 1-9 (some formatting altered).

At the conclusion of trial, the trial court concluded and awarded

damages as follows:

1. The claim for Quiet Title/Adverse Possession is DENIED.

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2. The claim under the Real Estate Sellers Disclosure Law (RESDL) is GRANTED and [the Davises] are awarded $2,900 in payments made for Lot 14, $972 for the ramp constructed to the shed and $18,500 as the cost to remove and repair the encroaching areas, all incurred as a result of the reliance on the Sellers’ Disclosure Statement.

3. The claim for fraud is GRANTED. [The Davises] are awarded the same damages as set forth under the claim for violation of the RESDL, without needing to be assessed separately at this time since they were already awarded in paragraph 2 herein.

4. The claim for Nuisance is DENIED.

5. The claim for Trespass is DENIED.

6. The claim for Replevin is GRANTED. Plaintiffs shall have ninety (90) days from the date this matter is deemed final to enter [the Panarellas’] Lot 14 and retrieve their shed and ramp in the easiest manner available. [The Panarellas] shall cooperate in that regard.

7. The claim for Specific Performance is DENIED.

8. The claims for breach of contract are DENIED.

9. The claim for punitive damages is DENIED.

10. The claim for attorney’s fees is GRANTED. [The Davises are] awarded $12,434.69 in attorney’s fees.

The total amount of monetary damages awarded to [the Davises] and against [the Panarellas] is $34,806.69.

Id. at 26-27.

On September 1, 2021, the parties submitted a joint motion asking for

an extension of time in which to file post-trial motions. The trial court granted

the motion and directed that post-trial motions shall be filed on or before

September 14, 2021. Order, 9/1/21.

The Panarellas filed their post-trial motion on September 7, 2021, and

the Davises filed their post-trial motions on September 14, 2021. The trial

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court denied both parties’ post-trial motions and judgment was entered on

October 8, 2021.2 The Panarellas filed their appeal on October 13, 2021, and

the Davises cross-appealed on October 25, 2021. The Davises, Panarellas,

and the trial court complied with Pa.R.A.P. 1925.

The Panarellas’ Appeal

On appeal, the Panarellas present the following issues:

1. Whether the trial court erred when it found in favor of [the Davises] where there was no legally competent evidence which met the standard required to prove damages under the Real Estate Seller Disclosure Act[.]

2. Whether the trial court erred in speculating on the award of attorney fees.

3. Whether the trial court erred in awarding a return of down payment monies when the buyer defaults because they could not come up with the balloon payment.

4. Whether the trial court erred in finding that there was fraud, when the testimony clearly showed it was negligence, and not intentional.

The Panarellas’ First Step Brief at 4 (formatting altered).

Our standard of review is as follows:

2 Although the Davises correctly appeal from the October 8, 2021 judgment, the record reflects that the Panarellas purport to appeal from the September 15, 2021 order denying post-trial motions. A trial court’s decision in a non- jury trial does not become final for purposes of appeal until properly reduced to and entered as a formal judgment under Pa.R.Civ.P. 227.4. See Morgan v. Millstone Resources Ltd., 267 A.3d 1235, 1243 (Pa. Super. 2021); see also Mackall v. Fleegle, 801 A.2d 577, 580 (Pa. Super. 2002) (explaining that an appeal does not properly lie from an order denying a post-trial motion, but rather from the judgment entered following disposition of post-trial motions). We have corrected the caption accordingly.

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Upon appeal of a non-jury trial verdict, we consider the evidence in a light most favorable to the verdict winner and will reverse the trial court only if its findings of fact lack the support of competent evidence or its findings are premised on an error of law.

When this Court reviews the findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below and all evidence and proper inferences favorable to that party must be taken as true and all unfavorable inferences rejected. The court’s findings are especially binding on appeal, where they are based upon the credibility of the witnesses, unless it appears that the court abused its discretion or that the court’s findings lack evidentiary support or that the court capriciously disbelieved the evidence.

It is inappropriate for an appellate court to make factual determinations in the face of conflicting evidence.

Phelps v. Caperoon, 190 A.3d 1230, 1243 (Pa. Super. 2018) (citation

omitted and formatting altered).

At the outset, we note that although the Panarellas purport to raise four

issues in their statement of questions presented, their brief contains only one

lengthy argument section in violation of Pa.R.A.P. 2119(a) (stating “[t]he

argument shall be divided into as many parts as there are questions to be

argued; and shall have at the head of each part[,] in distinctive type . . . the

particular point treated therein, followed by such discussion and citation of

authorities as are deemed pertinent.”). Additionally, the Panarellas’ brief

consists of unsupported assertions of error and undeveloped claims combined

into a single argument. See the Panarellas’ First Step Brief at 8-15. Upon

review, we conclude that this conglomeration of arguments and undeveloped

allegations of error result in waiver. See Lackner v. Glosser, 892 A.2d 21,

29 (Pa. Super. 2006) (providing that arguments that fail to adhere to the

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Pennsylvania Rules of Appellate Procedure and arguments that are not

developed are waived); see also Milby v. Pote, 189 A.3d 1065, 1079 (Pa.

Super. 2018) (noting that it is not the duty of the reviewing court to develop

an argument for an appellant or scour the record to find evidence to support

an argument). In any event, were we to reach the Panarellas’ issues, we

would affirm on the basis of the trial court’s opinion. See Trial Ct. Mem. and

Order, 8/27/21, at 1-27.

The Davises’ Cross-Appeal.

In their cross-appeal at 2266 EDA 2021, the Davises raise the following

issues:

1. Did the trial court commit reversible error when it declined to award treble and/or punitive damages?

2. Did the trial court commit reversible error when it denied [the Davises’] count for nuisance?

3. Did the trial court commit reversible error when it denied [the Davises’] count for trespass?

4. Did the trial court commit reversible error when it denied [the Davises’] count for specific performance?

5. Did the trial court commit reversible error when it denied [the Davises’] count for breach of contract?

6. Did the trial court commit reversible error when it denied [the Davises’] count for quiet title/adverse possession?

The Davises’ Second Step Brief at 1-2 (formatting altered).

Upon review, however, we conclude that the argument portion of the

Davises’ brief suffers from deficiencies similar to those found in the Panarellas’

brief. Although the Davises identify issues and present multiple statements

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of the law, they fail to develop any legal argument or provide relevant support

for their conclusory statements. See the Davises’ Second Step Brief at 23-

35. Rather, the Davises’ arguments are undeveloped, and as such, we

conclude that they have waived their issues on appeal. See Lackner, 892

A.2d at 29; see also Milby, 189 A.3d at 1079. In any event, were we to

reach the merits of the Davises’ claims of error, we would affirm on the basis

of the trial court’s opinion. See Trial Ct. Mem. and Order, 8/27/21, at 1-27.

Conclusion

After review, and for the reasons set forth above, we conclude that

neither the Panarellas nor the Davises are entitled to appellate relief.

Accordingly, we affirm the judgment following the trial court’s opinion and

order of August 27, 2021, which included its non-jury trial judgment

determination in this matter.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/19/2022

- 12 - Received 11/30/2021 10:33:46 Aldiftoa

Filed 11/30/2021 10:33:46 AM Superior Court Eastern District 2153 EDA 2021

COURT OF COMMON PLEAS OF MONROE COUNTY FORTY-THIRD JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA

ATTIKIS J. DAVIS and NO. 3649 CIVIL 2019 KELLIE RAE DAVIS,

Plaintiffs

VS.

MICHAEL PANARELLA and CHRISTINE A. PANARELLA,

Defendants :NON-JURY TRIAL

OPINION

This matter came before the Court for anon jury trial held on April 30, 2021.

Plaintiffs, Attikis J. Davis and Kellie Rae Davis ("Plaintiffs") alleged that Defendants, Michael

Panarella and Christine A. Panarella, sold them real property without disclosing an encroachment

of aportion of the driveway and landscaping on aneighboring lot. Plaintiffs also alleged the

neighboring lot, owned by the Defendants, was to be sold to them under aseparate agreement.

Plaintiffs filed aComplaint alleging adverse possession, violation of the Real Estate Seller

Disclosure Law ("RESDL"), fraud, nuisance, trespass, replevin, specific performance and breach

of contract. The parties have now submitted briefs, having waived the time period for adecision. FINDINGS OF FACT

I.Defendants were the owners of Lots 14 and 15 located at 229 Evergreen Court,

Saylorsburg, Monroe County, Pennsylvania. N.T. 4/30/21 pp. 15-17, p. 87; Plaintiffs' Exh. 1and

9.

2. Lot 14 was avacant lot and Lot 15 was improved with ahouse thereon,

including adriveway and other outdoor improvements. N.T. 4/30/21 p. 105; Plaintiffs' Exh. 1

and 9.

3. Defendants had listed the properties for sale at least three different times prior

to June of 2017. Id. at 58-59; 130.

4. Defendants had tried in the past to sell both of the properties together and at

least one time listed and marketed them for sale together, consisting of atotal of 3.64 acres. Id. at

88; 109; Plaintiffs' Exh. 19.

5. Some time prior to June 2017, Defendants received areferral to James

Galligan, aKeller Williams real estate agent located in Stroudsburg, PA, from Robert Pistone, a

Keller Williams real estate agent located in Las Vegas, NV, where the Defendants had recently

moved. Mr. Galligan and Mr. Pistone were both affiliated with Keller Williams and Mr. Pistone

had received Mr. Galligan's information as an agent in the Poconos where these lots are located.

N.T. 4/30/21 pp. 58; 61-62; 70-71; 88; 112-113.

6. While in Las Vegas for aseminar in May 2017, Mr. Galligan met with Mr.

Pistone and Mrs. Panarella to discuss apotential marketing plan for Defendants' property. Id. at

61-62; 76-77; 113-114.

2 7. Mr. Pistone recalled that there was adiscussion at that meeting of Defendants

wanting to sell both lots together. Id. at 112-120.

8. Sometime thereafter, Mr. Galligan met Mr. Panarella at the house on Lot 15 to

discuss alisting agreement. Id. at 62-64; 77-78. Mr. Galligan advised that the market might not

be conducive to the price the Defendants wanted for both properties, and that Defendants could

list Lot 15 for sale and try to offer Lot 14 to aprospective buyer of Lot 15 when they made an

offer, or wait and sell it separately in the future. Id. at 60-61.

9. Based upon that conversation, Mr. Galligan prepared alisting agreement in

early June 2017 for the improved Lot 15 only and the Defendants signed that agreement. Id. at

60-63; 68-69; 89; 101.

10. Mr. Galligan proceeded to list the property on the Multiple Listing Service

("MLS"), and marketed it specifically as Lot 15, consisting of an improved 1.94 acre lot. Id.

11. Defendants filled out and signed aSellers Property Disclosure Statement

("Disclosure Statement") on or about June 5, 2017. Plaintiffs' Exh. 2; N.T. 4/30/21 pp. 89-90;

101-102; 122-123.

12. The Disclosure Statement at paragraph 18(B), specifically asking whether

Defendants were aware of any encroachments, boundary line disputes, or any shared common

areas/driveways, was answered "No" by the Defendants. Plaintiffs' Exh. 2; N.T. 4/30/21 pp. 19-

20; 109; 122.

13. At the time they filled out the Disclosure Statement, Defendants knew that a

portion of their driveway, landscaping, retaining wall, and mailbox area encroached onto Lot 14

from Lot 15. N.T. 4/30/21 pp. 89-90; 100; 102-103; 105; 123-125.

3 14. At the time they filled out the Disclosure Statement, and through August

2018, Defendants did not inform their real estate agent, Mr. Galligan, of the property

encroachment from Lot 15 onto Lot 14. Id. at pp. 19; 65; 68-69; Plaintiff's Exh. 14.

15. If Mr. Galligan had been made aware of the encroachments he would have

required that it be disclosed to potential buyers, and required that the lots be listed and sold

together. Id. at pp. 65-66.

16. Plaintiffs eventually became interested in the improved Lot 15 and were

shown the property through their real estate agent, Jessica Keller. Id. at 16-17.

17. Ms. Keller knew of no listing agreement that included Lot 14 being offered

for sale with Lot 15, nor was it listed for sale together with Lot 15 in the MLS. Plaintiffs' Exh.

24 pp. 12, 13, 23, 26-28; Plaintiffs' Exh. 2.

18. Ms. Keller subsequently learned of Defendants' ownership of Lot 14 through

her own research and not because Lot 14 was listed in the MLS or presented as apackage deal

with Lot 15. Id.

19. Plaintiffs initially were only interested in purchasing the improved Lot 15 that

was listed for sale in the MLS. N.T. 4/ 30/21 pp. 17; 20-21; 50-51.

20. Plaintiffs made an offer to purchase Lot 15 and Defendants issued acounter-

offer at ahigher price that also included Lot 14 in the sale. Id. at 20; 34; 50-51; Defendants' Exh.

21. Plaintiffs were reluctant to purchase the vacant Lot 14 with Lot 15, but

ultimately agreed to do so in order to meet the Defendants' demand in order to purchase Lot 15.

The sale price for Lot 15 was $ 389,000 with closing on or before August 21, 2017. A separate

I installment agreement of sale was signed for vacant Lot 14 at asale price of $25,000, with $ 500

down, $200 per month from September 21, 2017 and the balance due on or before August 21,

2018. Plaintiffs' Exh. 1, 7and 8; N.T. 4/30/21 pp. 50-51; 54-55.

22. At no time prior to closing on Lot 15 on August 21, 2017 did Defendants

advise either the Plaintiffs, Plaintiffs' real estate agent, or Defendants' real estate agent, Mr.

Galligan, that aportion of the driveway, landscaping, retaining wall and mailbox encroached

from Lot 15 onto Lot 14. N.T. 4/30/21 pp. 19-20; 29-30; 35-36; 52-53; 65-66; 68-69; Plaintiffs'

Exh. 24 pp. 13; 23-24; 26-28.

23. Plaintiffs would not have purchased the properties if they had known of the

encroachments prior to closing. N.T. 4/30/21 pp. 20-21; 30.

24. Prior to the closing on Lot 15, Plaintiffs had ahome inspection performed.

Plaintiffs' Exh. 3; N.T. 4/30/21 pp. 25; 42; 66-67.

25. As aresult of the home inspection, averbal agreement was reached, as

memorialized in emails between the real estate agents. Defendants agreed to remediate the radon

levels, have the septic system pumped, and have the well "shocked" due to coliform. N.T.

4/30/21 pp. 66-68; 71-72; Plaintiffs' Exh. 5.

26. A written addendum to the contract for the repairs was prepared and signed

by the Plaintiffs, but the Defendants never signed it. N.T. 4/30/21 pp. 44; 66-68; 81-82; 91-92;

Plaintiffs' Exh. 4.

27. On Friday, August 18, 2017, just days prior to the closing on Lot 15,

Plaintiffs found out from their real estate agent that the Defendants had called Plaintiffs'

5 mortgage company, inquiring whether or not the agreed upon repairs had to be performed in

order to obtain a "clear to close" from the lender. N.T. 4/30/21 pp. 42-44; 91-93,

28. Upon learning that Plaintiffs already had a "clear to close" from the lender,

the Defendants informed their real estate agent that they would not be completing the agreed

upon repairs, and the Plaintiffs were forced to purchase the property "as is" or forego the entire

transaction. Id. at 42-44; 67-68; 71-72; 91-93.

29. Plaintiffs elected to proceed with the purchase and the parties closed on the

sale of Lot 15 on Monday, August 21, 2017, at which time the Defendants paid the cost to pump

the septic system, Mr. Galligan paid to shock the well, and Plaintiffs were left with the radon

mitigation cost. Id. at 67-68; 73-74; Plaintiffs' Exh. 6.

30. After closing on Lot 15, Plaintiffs paid $ 857 for additional plumbing work

related to the well, $ 1100 for aradon mitigation system, and $75 to spray for carpenter bees for a

total of $2032. N.T. 4/ 30/21 p. 42; Plaintiffs' Exh. 6.

31. Plaintiffs proceeded to move into the residence on Lot 15, made payments on

Lot 14, and erected ashed on Lot 14 along the property line. N.T. 4/30/21 pp. 22-23; 32; 48; 52-

53.

32. Plaintiffs made ten ( 10) monthly payments of $200 through July 2018 for the

vacant Lot 14, having missed the June payment. N.T. 4/ 30/21 pp. 32; 126-127; Plaintiffs' Exh. 9.

33. Plaintiffs also paid the 2018 property tax bill for Lot 14 at the request of the

Defendants. N.T. 4/30/21 p. 48.

34. On or about August 2, 2018, Plaintiffs began leaving phone call messages

and sending texts to Defendants requesting asix (6) month extension to close on Lot 14, and

6 offering to double the monthly payment to $400 until closing. Id. at 41-42; 93-94; Plaintiffs'

Exh. 9, 10 and 11; Defendants' Exh. "A."

35. Plaintiffs paid $400 to Defendants on August 16, 2018 and left another

message with Defendants repeating the request for an extension. At the time, they did not realize

that one prior $200 payment had been missed, but this payment brought them current on the

monthly payments under the installment agreement. N.T. 4/30/21 pp. 31-32; 130; Plaintiffs' Exh.

9, 10, 11 and 12; Defendants' Exh. "A."

36. Defendants accepted all of the payments made by the Plaintiffs totaling

$2,400, together with the initial deposit of $500, for atotal of $2,900, without declaring Plaintiffs

in default. N.T. 4/30/21 pp. 32, 93-94; 126-127; Defendants' Exh. "A."

37. Defendants did not respond to the Plaintiffs' requests to extend the closing

date for Lot 14, and when the Plaintiffs failed to close on or before August 21, 2018 as required

in the installment agreement, Defendants notified Plaintiffs they were in default and the

agreement was terminated. N.T. 4/30/21 pp. 41-42; 46; 94-96; 106-108; 127-128; Plaintiffs' Exh.

13.

38. In the Defendants' notification of default and termination, they indicated the

property would be placed back on the market and that if Plaintiffs still wanted to purchase Lot

14, the purchase price would now be $45,000. Id. In alater phone call with Plaintiffs, the

Defendants explained the increase in purchase price was due to the likely cost the Plaintiffs

would incur to remove the encroachments on Lot 14 if they did not purchase said lot.

Defendants' Exh. "A" p. 6.

7 39. Shortly thereafter, the Defendants advised the Plaintiffs they would be

erecting afence along the property line of Lot 14 and Lot 15, and then did so about 20 days later.

The fence effectively "fenced in" the Plaintiffs' shed onto Lot 14. Although Plaintiffs were able

to remove contents of the shed before the fence was installed, they were unable to move the shed

and aramp to access the shed prior to the fence being installed. N.T. 4/30/21 pp. 22-24; 26-28;

36-41; 104-105; 128-129.

40. On or about August 30, 2018, following aphone call with Defendants, Mr.

Galligan learned for the first time that aportion of the driveway, landscaping, retaining wall,

and mailbox encroached onto Lot 14 from Lot 15. Mr. Galligan immediately advised his broker

and Plaintiffs' real estate agent. Id. at 61; 68-69; Plaintiffs' Exh. 14.

41. Due to this new information, the Plaintiffs engaged Frank Smith, Jr. to survey

the lot line along Lots 14 and 15. N.T. 4/30/21 p. 21; Plaintiffs' Exh. 15.

42. The survey revealed property boundary encroachments onto Lot 14 of the

paved driveway, several paver areas, aramp Plaintiffs constructed to their shed on Lot 14, a

small retaining wall, additional landscaping and the mailbox. Plaintiffs' Exh. 15.

43. Plaintiffs spent $ 972 erecting the ramp to their shed that the survey reveals is

over the boundary line. N.T. 4/30/21 p. 23; Plaintiffs' Exh. 16.

44. The driveway, pavers, retaining wall, landscaping and mailbox were all

installed by or at the direction of the Defendants. N.T. 4/30/21 pp. 26-27; 89-90; 102-103; 105;

123-125.

45. Defendants obtained acost estimate from Sugar Hollow to remove the areas

of encroachment in the amount of $ 18,500. Defendants' Exh. "A" p. 6.

8 46. Plaintiffs were in the process of obtaining apermit to move the shed when

Defendants erected the fence with no trespassing signs. N.T. 4/ 30/21 pp. 22-24; 26-28; 36-41;

94-97; 104-105; 128-129.

47. Plaintiffs have had no access to their shed for nearly two (2) years and have

been unable to move it due to the erection of the fence and no trespassing signs. Id.

48. Defendants have demanded that Plaintiffs remove the mailbox that

Defendants had installed over the lot line onto Lot 14. Id. at 26-27; 96.

49. Defendants installed or directed installation of the driveway and other

encroachments onto Lot 14 themselves, while owning both Lots 14 and 15. This was done at the

time of or after building the house on Lot 15, which was completed in 2002. Id. 87; 105.

50. Plaintiffs have incurred attorney's fees in this matter of $ 12,153 up to time of

trial. Plaintiffs' Exh. 25 and 26. ($ 13,615.94 less $ 1,462.50 (6hrs. @243.75) estimated for trial).

DISCUSSION

Plaintiffs have filed suit with claims of quiet title by adverse possession; Real

Estate Sellers Disclosure Law ("RESDL") violations; fraud; nuisance; trespass; replevin; specific

performance and breach of contract. We will discuss those claims in that order.

A. Quiet Title by Adverse Possession —

For adverse possession to apply, one must occupy the land of another who has

title to said land and the occupier's possession must be actual, exclusive, visible, notorious,

distinct and hostile for aperiod of 21 years or more. 42 Pa. C.S.A. Section 5530; Burns v.

Mitchell, 381 A.2d 487 (Pa. Super. 1977). The term "hostile" means the person in possession

9 intends to hold title against the record title holder. Glenn v. Shuey, 407 Pa. Super. 213, 595 A.2d

606 ( 1991).

In this case, Defendants purchased Lots 14 and 15 together by deed dated March

26, 2001. See Plaintiffs Exh. 17. Defendants then constructed ahouse on Lot 15, together with

adriveway, retaining wall, other landscaping and amailbox sometime in 2001-2002. The

encroachments started to exist, at the earliest, in 2001. Plaintiffs discovered the encroachments

in 2018 and Defendants constructed afence along the property line at that time, ending any

period of possession that had been created. This was less than 21 years.

More importantly, the possession for the entire time the Defendants owned both

lots did not qualify as adverse possession because such possession was not hostile. One who

holds title to both parcels containing the encroachment cannot intend to hold the property against

the record title holder because they are the same person. By the very definition of "hostile," one

who owns both parcels with an encroachment from one onto the other, does not have aclaim for

adverse possession. Therefore, any such adverse possession of the area of the encroachments did

not start to be hostile until Plaintiffs purchased Lot 15 in 2017. Insufficient time has passed

since then to claim adverse possession of the disputed area. Therefore, the Plaintiffs have not

met the requirements for adverse possession.

B. Real Estate Seller Disclosure Law ("RESDL") —

All residential real estate sales require that sellers fill out, sign, and provide to

buyers prior to asale, adetailed disclosure regarding the real property. 68 Pa. C.S.A. Section

7301-7314. (the "RESDL") Under the RESDL, sellers must disclose any material defects with

10 the property. See 68 Pa. C.S.A. Section 7303. A material defect is one that could have a

significant adverse impact on the value of real property being sold. 68 Pa. C.S.A. Section 7102;

See also Phelps v. Caperoon, 2018 Pa. Super. 171, 190 A.3d 1230 (2018). The required Seller's

Disclosure Statement includes the condition of soils, drainage and boundaries. See 68 Pa. C.S.A.

Section 7304(B)(13). Sellers are not liable for failure to disclose where they have no knowledge

of amaterial defect, or believe it was corrected. Id. at Section 7309. Areal estate agent can also

be liable if they had actual knowledge of amaterial defect and did not disclose it to buyers. Id. at

Section 7310.

A Disclosure Statement is required to be filled out and signed by sellers even if a

property is being sold "as is." Phelps supra. An innocent misrepresentation about boundary

lines can also be material and actionable on the theory that sellers know basic facts about their

property before asale. See Miller v. Bare, 457 F. Supp. 1359 (W.D. Pa. 1978). Finally, there are

no exceptions to the disclosure requirement. Phelps supra.

Here, the Defendants answered "No" to question 18B in the Disclosure Statement

which asked whether they were aware of any encroachments, boundary line disputes or of any

shared common areas, such as driveways. In this case, aportion of the driveway, retaining wall,

landscaping materials and mailbox all encroached onto Lot 14 from Lot 15. Defendants knew of

the encroachments over the boundary line prior to the sale to Plaintiffs. Defendants had the

home and all improvements thereon constructed, including the areas encroaching on Lot 14.

But, they failed to disclose it to the Plaintiffs, either in writing as required by the RESDL, or

orally. We do not find Defendants credible in their testimony that they disclosed the

encroachments to their real estate agent, James Galligan. We find Mr. Galligan's testimony

I1 more convincing and credible in that regard. However, even if they had, Defendants still would

not be relieved of their duty to disclose in the Disclosure Statement. 68 Pa. C.S.A. Section 7301

et seq. On the face of the Sellter's Disclosure Statement alone, we find that the Defendants

failed to disclose aknown defect.

We also find the encroachments were amaterial defect of Lot 15. The

encroachments had asubstantial effect on the value of the property as part of the driveway,

retaining wall, landscaping and mailbox were on aseparate lot. All would have to be removed

from Lot 14 upon demand of the owner of Lot 14, unless an easement was granted, or a

subdivision of part of Lot 14 was approved. Those scenarios would be subject to the approval of

the owner of Lot 14, and in the case of asubdivision, the approval of the Township would also

be required. Defendants own Lot 14, want to sell Lot 14, and have shown that they are unlikely

to work with the Plaintiffs to correct the situation. Even if Defendants would do so, there would

be legal and professional expenses incurred. Furthermore, Plaintiffs testified that had they

known of the encroachments prior to signing an agreement of sale or closing on the real

property, they never would have purchased the property, even if Lot 14 was being purchased

together at the same time as Lot 15.

Defendants argue they notified their real estate agent of the encroachment, and

cite this as the reason for wanting to sell Lot 14 with Lot 15. We find their testimony

unconvincing. Mr. Galligan, alicensed real estate agent in Pennsylvania for 22 years,

understands the ramifications of non-disclosure, and he was more credible in his testimony that

he would have disclosed the encroachments immediately had he known of them. This is backed

up by Mr. Galligan's decision to immediately inform his broker and Plaintiffs' real estate agent

12 when he was advised of the encroachment by the Defendants over ayear after the closing on Lot

15, when the Lot 14 sale did not take place. Adding to Mr. Galligan's credibility over that of the

Defendants is that the Defendants then used the encroachment issue to try and leverage the

Plaintiffs into purchasing Lot 14 at ahigher price, once the original installment agreement had

expired. Defendants admitted as much in atelephone call to the Plaintiffs in September 2018

when they told Plaintiffs the higher sale price was because the parties now faced potential legal

fees and/or acost of at least $ 15,000-$18,000 to remove the encroachments. See Defendants'

Exh. "A" p. 6. In doing so, the Defendants actually admitted that the higher purchase price for

Lot 14 was due to the encroachments and the potential cost Plaintiffs would have to correct them

now that they knew about it. Id. This is unconscionable since Defendants knew of the

encroachments, failed to disclose the encroachments, and now had the Defendants over abarrel,

because they had not been able to close on Lot 14 under the original installment agreement.

Furthermore, even if the Defendants had told Mr. Galligan prior to Plaintiffs entering an

agreement of sale with them that there was an encroachment, Defendants still violated the

RESDL by failing to note the encroachment in the Disclosure Statement. That requirement

cannot be waived. See Phelps, supra.

Defendants also seem to be arguing that the mistake, if any, was innocent, since

they were selling both lots to the Plaintiffs, albeit not at the same time. First, there is no such

exception under the RESDL. Second, Lot 14 was not being conveyed simultaneously with Lot

15, and there was always achance (as it proved to be) that Plaintiffs would not close on the

purchase of Lot 14. In any event, it still would have been amaterial defect even if Plaintiffs had

closed on the purchase of Lot 14, as they would have potential expenses when they sold either

13 Lot 14, or 15, or even both together, once the encroachments were discovered. Even if the

encroachments could have been discovered by the Plaintiffs if they had done asurvey prior to

closing (which is rarely done in Pennsylvania), that is no excuse for non-disclosure under the

RESDL. Finally, the persuasive arguments set forth in Miller v. Bare, supra, convince us that the

encroachments were abasic fact about the properties that Defendants knew of and failed to

disclose. According to the Defendants' own testimony, it was one reason they wanted to sell the

lots together. Any "innocent mistake" claimed by them is disingenuous, and still actionable.

They knew about the encroachments and should have disclosed them, whether they were selling

the lots together or not. The whole purpose of the RESDL is disclosure so informed decisions

can be made.

As we find the Defendants violated the RESDL, the next issue is damages

sustained. The RESDL provides for "actual damages" of the other party. 68 Pa. C.S.A. Section

7311; Phelps v. Caperoon, supra. Although Plaintiffs stated in testimony they would not have

purchased either lot if they knew of the encroachments, they are not seeking rescission of the

sale of Lot 15 and they ultimately did not purchase Lot 14. Plaintiffs have not presented any

evidence of diminution of value of Lot 15 due to the encroachments. As aresult, there is only

speculation as to the value of Lot 15 being less than the purchase price due to the encroachments.

Plaintiffs have provided convincing testimony that Defendants have demanded that Plaintiffs

remove the mailbox encroaching on Lot 14 that the Defendants actually installed. Defendants

have not yet demanded removal of the other encroachments, but they or anew owner of Lot 14

could do so at any time. However, the Plaintiffs did not present any costs incurred or estimates

of costs to remove and repair the areas of encroachment.

14 We find that the payments made to purchase Lot 14 and the proven costs

associated with the shed incurred by the Plaintiffs are included within the meaning of "actual

damages" under Section 7311 of the RESDL. 68 Pa. C.S.A. Section 7311. Although Plaintiffs

have not provided aclaim for rescission with respect to Lot 15, or aloss in value or cost to

repair/remediate Lot 15 due to Defendants' violations of the RESDL, Plaintiffs have adequately

plead and testified they would not have attempted to purchase Lot 14 with known

encroachments. They ultimately did not close on the purchase for other reasons, but not before

incurring payments to the Defendants to purchase Lot 14, and to place the shed on Lot 14. We

find these are actual damages incurred due to reliance upon the Defendants' Disclosure

Statement as contemplated by the Pennsylvania legislature in adopting the RESDL and as set

forth in Phelps v. Caperoon, supra. These damages were sought and proven as being incurred by

the Plaintiffs. The Defendants' failure to disclose the encroachments led directly to Plaintiffs

incurring those expenses that were proven at time of trial. Those damages include the deposit

paid on Lot 14 of $500, ten ( 10) payments of $200 and one ( 1) payment of $400 ($2,400), and

$972 for construction of the ramp to the shed. None of those costs would have been incurred if

Defendants had made the appropriate disclosure. Plaintiffs provided no testimony of the costs

they claimed in their Complaint for storage fees as aresult of not having access to the shed to

move it. Therefore, those costs cannot be awarded. The total amount of proven damages directly

incurred by Plaintiffs related to Lot 14 for Defendants' failure to disclose is $3,872.00. 1

'Plaintiff testified credibly that they paid areal estate tax bill on Lot 14 at the direction of Defendants, but they failed to state the amount of that bill so we cannot consider it for damages.

15 Although the Plaintiffs did not present proof of the cost to remove the

encroachments, testimony on behalf of the Defendants did. See Defendants' Exh. "A" p. 6. In a

telephone call with the Plaintiffs, the Defendants estimated the cost to remove the encroachments

as $ 15,000 - $ 18,000. They further stated that they received aquote for such work from "Sugar

Hollow" in the amount of $ 18,500. Id. We don't doubt that the Defendants received such a

quote, as they appeared to have been readily prepared for the telephone conversation with i Plaintiffs that was recorded and transcribed as Defendants' Exh. "A," which took place after

Plaintiffs' default on the purchase of Lot 14. Defendants spoke of talking to alawyer,

contemplating suing both real estate agents, (including Mr. Galligan for "illegal" actions and a

"federal offense"), and obtaining aquote to remove the encroachments. The text of that

conversation clearly shows that Defendants were prepared to deflect blame from them to the real

estate professionals and to convince the Plaintiffs of the costs and problems they. would incur by

not purchasing Lot 14. These costs and problems were the rationale of the Defendants wanting

an additional $20,000 to sell the lot to the Plaintiffs. Defendant Michael Panarella explained the

higher price as follows: " So, that's why that letter came in at $45,000 because if you did not

want to buy the property, that would guarantee you that would cost you $ 15,000 - $ 18,000 to

move everything." Id. Mr. Panarella had previously said in that conversation:

"Because of the fact that the encroachment is there, as it stands right now the mailbox would have to be moved, the shed would have to be moved, the driveway to acertain point would have to be moved, the retaining wall would have to be moved, all that garden has to be moved. Now if you don't buy your (sic) property, so what Idid was have Sugar Hollow bill $ 18,500 to do that. So what Idid was add that onto of (sic) the money that was supposed to be done in closing with the interest Iturned around when payments were late." Id.

16 We find the Defendants' estimate of work to remove the encroachments both

credible and convincing due to the context in which it was made. We take this as an admission

of the Defendants of the cost to remove the encroachments. The Defendants were clearly trying

to rationalize to the Plaintiffs why the failure to purchase Lot 14 timely, would result in ahigher

purchase price thereafter. It appears they did their homework on said cost to remove the

encroachments, making it both convincing and reasonable as the cost to correct. Therefore, the

cost of $ 18,500 is aproven damage incurred by the Plaintiffs. The total damages to be awarded

due to Defendants' non-disclosure and violation of the RESDL is $22,372.

C. Fraud —

Plaintiffs' next claim is for common law fraud. They must show clear and

convincing evidence of 1) arepresentation; 2) which is material to the transaction at hand; 3)

made falsely with knowledge of the falsity or recklessness as to whether it is true or false; 4)

with the intent of misleading another into relying on it; 5) justifiable reliance on the

misrepresentation; and, 6) resulting injury from the reliance. Gibbs v. Ernst, 538 Pa. 193, 674

A.2d 882 ( 1994). In this case, the elements of common law fraud have also been met. We find

Plaintiffs and Mr. Galligan credible and convincing that Defendants never disclosed the

encroachments on Lot 14 to them until ayear after the closing on Lot 15. The statements were

made in the Seller's Disclosure Statement which listed no encroachments or boundary line

problems. This representation was clearly false. It was material to the transaction at hand.

Plaintiffs testified they would not have purchased either property if the correct representation had

been made. Defendants' intent to mislead Plaintiffs to rely on the representation is clear in the

17 circumstantial evidence of this case. That includes the price paid for both lots; Defendants'

insistence that Plaintiffs purchase Lot 14 after receiving an offer from them to only purchase Lot

15; Defendants' non-disclosure in the Seller's Disclosure Statement and failure to notify Mr.

Galligan of the encroachments; and, Defendants notifying Mr. Galligan and the Plaintiffs only

after Plaintiffs sought more time to close on Lot 14, Defendants' termination of the agreement on

Lot 14, and subsequent request for ahigher purchase price at that time.

The Plaintiffs clearly relied on the misrepresentation, as they purchased Lot 15,

signed an installment agreement to buy Lot 14, and moved their shed onto Lot 14 and

constructed aramp to it. The damages sustained were those set forth above under the RESDL

violation: $500 down payment and $2,400 in payments on Lot 14, the ramp cost of $972, and

$18,500 to remove the encroachments. We find these were the provable damages for fraud, being

the same as the violation of the RESDL.

D. Nuisance —

Plaintiffs' next claim is for nuisance. A person is subject to liability for aprivate

claim of nuisance if the conduct invades another's interest in the enjoyment of land, and the

invasion is a) intentional and unreasonable or b) unintentional, but reckless. Restatement

(Second) of Torts Section 822. However, such liability will only extend to instances of

significant harm of akind suffered by anormal person or by aproperty in normal condition and

used for normal purposes. Restatement (Second) of Torts Section 821F. Here, the nuisance

alleged is the encroachment onto Lot 14, created by the Defendants, and the shed erected on Lot

14 by the Plaintiffs, that is now fenced in by the Defendants. The encroachments do not

18 constitute anuisance to Lot 15 and Plaintiffs' enjoyment therein under the definition of the

Restatement. Although Plaintiffs may need to move their mailbox, there is no other immediate

action requested. Nor are any of the encroachments an invasion of someone else onto Plaintiffs'

Lot 15.

With regard to the shed, again, there is no invasion of the Plaintiffs' use and

enjoyment of land, being Lot 15. The shed is on the Defendants' Lot 14. The Defendants are

not encroaching or preventing use of Plaintiffs' Lot 15. Therefore, nuisance does not apply in

this case.

E. Trespass —

Plaintiffs claim atrespass on their land by the actions of the Defendants. A

trespass is defined as an unprivileged, intentional intrusion upon land in possession of another.

Kopka v. Bell Telephone Co., 371 Pa. 444, 91 A.2d 232 ( 1952). For the same reasoning as set

forth above concerning nuisance, there is no actionable claim for trespass. Here, Defendants are

not trespassing on Plaintiffs' Lot 15. The encroachments are onto Lot 14. The Plaintiffs' shed is

located on Lot 14, but Defendants are not encroaching in any way on Plaintiffs' Lot 15.

Therefore, the claim for trespass will be denied.

F. Replevin —

Plaintiffs' shed is located on Defendants' Lot 14. It was placed there when

Plaintiffs were under agreement to purchase Lot 14. Plaintiffs constructed aramp to access the

shed at acost of $ 972. They then moved items that were in the shed to astorage facility when

the Defendants terminated the Agreement of Sale for Lot 14 due to Plaintiffs' inability to close

19 within the timeframe set in the Agreement. Defendants gave notice of termination of the

Agreement, notice they would be constructing afence along the property line, and then

constructed that fence. Plaintiffs were unable to move the shed prior to the fence being erected

and now there are "no trespassing" signs posted on Lot 14.

Replevin is an action to regain possession of goods detained or illegally possessed

by another. Int'l. Elec. Co. v. N.S.T. Metal Prod. Co., 370 Pa. 213 ( 1952). The shed clearly

belongs to Plaintiffs. It was placed on Lot 14 when the Plaintiffs had an equitable interest

therein under the installment agreement of sale with Defendants. We also find that the shed was

placed on Lot 14 with Defendants' knowledge and without objection. Defendants have retained

possession of the shed belonging to the Plaintiffs by virtue of the fence and "no trespassing"

signs which prevent removal by the Plaintiffs. Notice of approximately twenty days was given

to Plaintiffs prior to erection of the fence which was insufficient time for Plaintiffs to move the

shed. The Plaintiffs are entitled to retrieve their shed and the ramp to the shed. This may be

difficult now that afence has been erected, but we will grant aperiod of time for Plaintiffs to go

onto Lot 14 and retrieve the shed and ramp. Defendants will have to work with Plaintiffs to do

that in the easiest manner that can be accomplished. The money damages sought by Plaintiffs

under the Replevin count are not appropriate in areplevin action and will not be awarded. A

replevin claim allows someone to simply retrieve the item for which they have title. We also

note that Defendants have not provided any cost estimate to remove the shed from Lot 14, and

thus, no recoverable damages anyway.

20 G. Specific Performance —

Plaintiffs seek specific performance of the Agreement to purchase Lot 14.

Specific performance is aproper remedy to convey title to real property for the terms of a

contract where no adequate remedy at law exists and the other party violates the terms of the

contract. Messina v. Silberstein, 528 A.2d 959 (Pa. Super. 1987). In this case, the parties had an

installment Agreement of Sale for Plaintiffs to purchase Lot 14 on or before August 21, 2018.

The Agreement had atime is of the essence clause. It also contained aclause that the Sellers

(Defendants) could retain all sums paid by the Buyers (Plaintiffs) in the event of Plaintiffs'

default. Plaintiffs failed to close on the purchase of Lot 14 on or before August 21, 2018.

Defendants immediately sent anotice of default and terminated the Agreement.

Plaintiffs contend they remain ready, willing and able to purchase Lot 14 for the

agreed upon price of the Agreement. However, they were unable to do so on or before August

21, 2018, the date required in the Agreement. In fact, Plaintiffs admitted they were unable to

close in the time period required and sought asix month extension. This was aunilateral attempt

to extend the Agreement beyond the expiration date for aclosing. Defendants responded they

were unwilling to do so. There was no evidence that Plaintiffs were ready, willing and able to

close on the purchase on or before August 21, 2018, nor that Defendants defaulted under the

Agreement. Therefore, the request for specific performance cannot be granted.

H. Breach of Contract —

Plaintiffs have essentially made two separate claims for breach of contract. The

first is for the costs of repairs the Plaintiffs paid that Defendants had agreed to remediate prior to

21 closing on Lot 15 of $2,032. The other claim is for the monies paid to the Defendants by the

Plaintiffs toward the purchase of Lot 14 which was $2,900 ($500 deposit plus $2,400 paid

through August 18, 2018). For breach of contract, the following must be proven: 1) the

existence of acontract; 2) abreach of duty imposed by the contract; 3) resulting damages.

Corestates Bank, N.A. v. Cutillo, 723 A.2d 1053 (Pa. Super. 1999). The statute of frauds

requires that all contracts pertaining to the purchase of land be in writing. Brotman v. Brotman,

353 Pa. 570, 46 A.2d 175 ( 1946); Manley v. Manley, 238 Pa. Super. 196, 357 A.2d 641 ( 1976).

Here, Plaintiffs had an Agreement of Sale with Defendants to purchase Lot 14.

That Agreement was in writing and had atime is of the essence clause. Plaintiffs made

payments under the Agreement as required. Plaintiffs failed to close on or before August 21,

2018 as required by the Agreement. Defendants were not in default of that Agreement, and

therefore, did not breach acontract. Plaintiffs were unable to close on or before the agreed upon

closing date and Defendants terminated the Agreement. The language of the Agreement called

for the Defendants to keep any monies paid by Plaintiffs. Therefore, Plaintiffs cannot recover

the monies paid to Defendants under atheory of breach of contract regarding Lot 14.

Similarly, Plaintiffs cannot recover under atheory for breach of contract

regarding the monies they paid for repair issues on Lot 15 which Defendants had originally

agreed to address. Based upon the credible testimony of Mr. Galligan, the parties had agreed, at

least verbally, to have the Sellers pay to pump the septic system, install aradon mitigation

system and to shock the well water. A written addendum was prepared for those items, but never

signed by the Defendants. The Defendants ultimately paid for the septic system to be pumped;

22 however, at closing on August 21, 2017, Defendants refused to pay for anything else. 2 Mr.

Galligan ended by paying the cost to shock the well and Plaintiffs paid for the radon system

($1,100).

At closing, the parties chose to close without anything further in writing.

Defendants never signed the written addendum. The Plaintiffs chose to close on Lot 15. The

inspection contingency paragraph of the Agreement of Sale at paragraph 13 required amutually

acceptable written agreement concerning repair issues, and if not obtained, the Plaintiffs could

terminate the agreement or move forward and purchase "as is" with arelease pursuant to

paragraph 28 of the agreement. By choosing to close without awritten agreement on the repair

issues, the Plaintiffs' claims were subject to the "as is" clause and release language of the

Agreement, and cannot be reviewed now.

While we agree with Plaintiffs that they were in an untenable position at closing

over the repair issues, the language of the Agreement controls. Those claims were released. As

Mr. Galligan noted, in his 20+ years of experience it was rare that parties would fail to keep an

oral promise to make repairs. It is particularly curious that Defendants only did so after learning

the Plaintiffs had a "clear to close" from their lender whether or not the repairs were made. That

left the Plaintiffs with no leverage at that point, short of cancelling the whole deal. It is

disappointing when people refuse to honor their word and choose to lessen their integrity, but it

'- Plaintiffs contend there was also an agreement to pay for carpenter bee remediation ($ 75), and that they incurred additional plumbing expenses related to the well, but we do not find evidence of this in the record. Mr. Galligan provided credible and convincing testimony of what was ultimately agreed to in the course of negotiations over inspection items.

23 is not actionable in this context. Therefore, Plaintiffs cannot recover on their breach of contract

claims regarding the repair issues.

Plaintiffs also seek punitive damages and attorney's fees. An award of punitive

damages requires ashowing of willful, malicious conduct, or conduct so careless as to be a

wanton disregard for others, or when adefendant acts with an evil motive. We find that while

the Defendants' behavior in this case was egregious, it was not enough to rise to the level

necessary for an award of punitive damages.

Plaintiffs have submitted aclaim for attorney's fees in the amount of $ 13,165.94.

See Plaintiffs' Exh. 25 and 26. This includes an estimated 6hours at $243.75 per hour

($1,462.50) for trial. The imposition of attorney's fees is appropriate where it is provided for by

.statute, or contained in an agreement of the parties. We find that the clause "actual damages"

under Section 7311 of the RESDL includes the ability to award attorney's fees. 68 Pa. C.S.A.

Section 7311. Although not specified in the RESDL, there is no case law defining "actual

damages," nor guidance regarding attorney's fees under this statute. Therefore, we find no

prohibition to such an award under the RESDL as part of "actual damages." We find that

attorney's fees to bring an action under the RESDL is an "actual damage" and corollary to the

grounds under which the RESDL exists. Absent Defendants' conduct in violating the RESDL

the Plaintiffs would not have incurred attorney's fees to bring this action. We find no other

authority under the other claims brought by Plaintiffs to award attorney's fees, but do so under

the RESDL. We further find that the attorney's fees sought were the reasonable and necessary

amount to bring the RESDL claim and were no more than necessary just because other causes of

action were raised. The issues raised, the discovery taken, the preparation for trial and the trial

24 itself were inseparable from aclaim only under the RESDL versus the other causes of action.

Therefore, we will make an award for most of the attorney's fees sought except for the total time

estimated for trial. The actual time for the trial was about three (3) hours, so we will mold the

Plaintiffs' attorney's fees request to $ 12,434.69. ($ 13,165.94 less $ 731.25 representing three (3)

hours at trial instead of six (6) hours). The amount of attorney's fees was reasonable and set

forth sufficiently in Plaintiffs' Exhibits 25. and 26. This will be added to the other proven

damages.

25 COURT OF COMMON PLEAS OF MONROE COUNTY FORTY-THIRD JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA

ATTIKIS J. DAVIS and KELLIE RAE DAVIS, NO. 3649 CIVIL 2019

Defendants : NON-JURY TRIAL

aRDER

AND NOW, this a 7 11:• ;t d fay of August, 2021, following anon jury trial in this

matter, it is ORDERED as follows:

2. The claim under the Real Estate Sellers Disclosure Law ("RESDL") is

GRANTED and Plaintiffs are awarded $2,900 in payments made for Lot 14, $ 972 for the ramp

constructed to the shed and $ 18,500 as the cost to remove and repair the encroaching areas, all

incurred as aresult of the reliance on the Sellers' Disclosure Statement.

3. The claim for fraud is GRANTED. Plaintiffs are awarded the same damages

as set forth under the claim for violation of the RESDL, without needing to be assessed

separately at this time since they were already awarded in paragraph 2herein.

26 4. The claim for Nuisance is DENIED.

6. The claim for Replevin is GRANTED. Plaintiffs shall have ninety (90) days

from the date this matter is deemed final to enter Defendants' Lot 14 and retrieve their shed and

ramp in the easiest manner available. Defendants shall cooperate in that regard.

10. The claim for attorney's fees is GRANTED. Plaintiff is awarded $ 12,434.69

in attorney's fees.

The total amount of monetary damages awarded to Plaintiffs and against

Defendants is $34,806.69.

BY THE COURT:

DAVID J. ' VILL USON, J.

cc: Brett J. Riegel, Esq. David A. Martino, Esq. i••:

DJW2021-066 Davis vPanarella 3649 CV 2019.docx N C; J

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