Hockel v. Bennicoff

28 Pa. D. & C.5th 86
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedFebruary 25, 2013
DocketNo. 2012-C-0885
StatusPublished

This text of 28 Pa. D. & C.5th 86 (Hockel v. Bennicoff) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hockel v. Bennicoff, 28 Pa. D. & C.5th 86 (Pa. Super. Ct. 2013).

Opinion

FORD, J.,

This case involves an unfortunate dispute among family members. The primary issue is whether the defendants, Robert W. Bennicoff Jr. [88]*88and Barbara G. Bennicoff, who are the parents of plaintiff, Lisa M. Hockel, should be compelled by the court to reconvey real estate located in Lower Milford Township, Lehigh County, to the plaintiff. After consideration of the evidence presented at the bench trial on October 10, 2012, and the applicable law, the court concludes that the several requests contained in the complaint should be denied and only one aspect of the counterclaim in regard to rental payments should be granted. I enter an order today directing these things. I first explain what happened among the parties and I then provide an analysis of the applicable law.

Findings of Fact

1. Plaintiff, Lisa M. Hockel, is the adult daughter of defendants, Robert W. Bennicoff Jr. and Barbara G. Bennicoff.

2. By deed dated April 13,2001, defendants conveyed to plaintiff and Keith Lee George, then her husband, a vacant 4.0576 acre parcel of land in Lower Milford Township, Lehigh County. (The deed is Exhibit P-1.)

3. Plaintiff and Mr. George conveyed a 1.989 acre portion of the parcel back to defendants by a deed dated October 4, 2002. (This deed is Exhibit P-2.) This reconveyance was done for tax advantage purposes. This left plaintiff and Mr. George with a 2.0686 acre parcel known as 1280 Wind Hill Road, Lower Milford Township. This is the property that is disputed in this litigation. In 2002, plaintiff and Mr. George built a two-story single family dwelling on the property.

[89]*894. Plaintiff and Mr. George mortgaged the disputed property for the total principal amount of approximately $212,900. (See Exhibits P-3, P-4, and P-5.)

5. Plaintiff and Mr. George experienced marital difficulties which led to their divorce on March 1, 2006.

6. In the course of distribution of their marital property, plaintiff and Mr. George had discussions with defendants as a result of which an oral agreement was reached as to the disputed real estate. Under this agreement, plaintiff and Mr. George would reconvey the disputed property to defendants in return for defendants’ payment of the mortgage debt incurred by plaintiff and Mr. George on the disputed property.

7. In accord with their oral agreement, plaintiff and Mr. George reconveyed the disputed property to defendants on May 9, 2005. (See Exhibit P-7.) Defendants then satisfied the mortgage debt on the premises in the amount of about $205,000 through a new home equity loan. Defendants have maintained the disputed property since then which has included the payment of taxes and homeowner’s insurance.

8. In the course of their marriage, plaintiff and Mr. George had a child, Emma Lynn George, who was bom on April 7,2001. Defendants are emotionally very close to their granddaughter, Emma. They did not and still do not want her to move from the disputed property.

9. Following the divorce, plaintiff and Emma continued to live at the disputed property in return for the payment [90]*90of a monthly rental of $700, an amount agreed between plaintiff and defendants. Mr. George moved from the property. In 2007, plaintiff married Jack Hockel who lives as the disputed property with plaintiff and Emma.

10. Plaintiff wishes to have the disputed property reconveyed to her by defendants for $205,000, the amount that defendants paid to satisfy the previous mortgages incurred by plaintiff and Mr. George. Plaintiff claims that there was an oral agreement at the time of the last (May 9, 2005) conveyance that defendants would again transfer the property to her for $205,000. Defendants agree that there was an agreement for a reconveyance; however, there was no agreement, oral or written, as to the amount to be paid for it. The parties have been unable to resolve this disagreement and it has led to a falling out among them.

11. While defendants have been generous in the various real estate transactions described herein to plaintiff, their daughter, since her marriage to Mr. George, defendants did not act as financial advisors to plaintiff or otherwise act in a secret or confidential manner to benefit plaintiff.

12. Plaintiff paid the $700 in rent through September of 2011 although some unproven rental payments were missed before then. Plaintiff has not paid rent since September of 2011. When plaintiff did not pay the October 2011 rent payment, Mr. Bennicoff sent a written demand to plaintiff for an increase in the rent from $700 per month to $1,600 per month. Plaintiff did not respond to this demand nor did she pay any rent payments from October 1, 2011, to [91]*91the present.

13. In late 2011, Mr. Bennicoff demanded that plaintiff and Mr. Hockel remove personal property from the north bam located on defendants’ property or pay storage rental in the amount of $200 per month. Two months was given to do this. Plaintiff and her husband removed some of the property but did not remove other property within the two months. Thereafter defendants changed the locks on the north bam so that nothing could be removed by plaintiff and her husband.

Discussion and Conclusions of Law

In the complaint, plaintiff asks that the court declare that defendants hold the disputed real estate in constructive trust for the plaintiff. Plaintiff wants the defendants to be ordered to reconvey the property to her for the amount of $205,000. This was the amount defendants paid at the time of plaintiff’s divorce to satisfy the mortgages on the property in return for reconveyance of the disputed property to them, the defendants. Plaintiff says that these were the terms of her oral agreement with defendants.

Defendants respond that the statute of frauds, 33 P.S. § 2, requires that such an agreement in conjunction with the transfer of real estate must be in written form to be enforceable. Defendants also assert that not even an oral agreement was reached as to the terms for a reconveyance of the disputed property from them to plaintiff. While defendants expressed a willingness to reconvey the property, they say that the cost of the reconveyance is still to be determined. Also, according to defendants, an [92]*92essential requirement for the imposition of a constructive trust has not been proven, namely, that a confidential relationship existed between plaintiff and defendants. It is defendants’ position that no such relationship existed.

The Pennsylvania Supreme Court has addressed the requirements for the imposition of a constructive trust on real estate among family members in Silver v. Silver, 421 Pa. 533, 219 A.2d 659 (1966). According to the Supreme Court, if the requirements for a constructive trust are met, the statute of frauds “would not be operative in [such a] case, since a constructive trust, being implied by law, is expressly excluded from the operation of the statute.” Id. at 536, 219 A.2d at 661. Thus, for plaintiff to succeed in enforcing the agreement for the transfer of real estate that she alleges, she must demonstrate the existence of a constructive trust. Otherwise, the statute of frauds bars any recovery for her.

The Supreme Court explained what is necessary for a constructive trust to bring about the transfer of real estate among those in a confidential relationship:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Silver v. Silver
219 A.2d 659 (Supreme Court of Pennsylvania, 1966)
Trombetta v. Raymond James Financial Services, Inc.
907 A.2d 550 (Superior Court of Pennsylvania, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
28 Pa. D. & C.5th 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hockel-v-bennicoff-pactcompllehigh-2013.