Oliphant, T. v. Thai, M.

Superior Court of Pennsylvania

Oliphant, T. v. Thai, M.

DecidedSeptember 18, 2020

Docket2015 EDA 2019

StatusUnpublished

This text of Oliphant, T. v. Thai, M. (Oliphant, T. v. Thai, M.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Oliphant, T. v. Thai, M., (Pa. Ct. App. 2020).

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Opinion

J-A10021-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TAMEIKA OLIPHANT : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : MINHV V. THAI AND KHEIM L. THAI : No. 2015 EDA 2019

Appeal from the Judgment Entered August 7, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 130502929

BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 18, 2020

Appellant, Tameika Oliphant, appeals from the judgment entered in

favor of Appellees, Minhv V. Thai and Kheim L. Thai (the “Thais”), on August 7,

2019, in the Court of Common Pleas of Philadelphia County. We affirm.

This case stems from a claim that undisclosed water and mold damage

existed at the subject residential property, 269 West Calvert Street, in

Philadelphia, Pennsylvania, prior to Appellant’s purchase of the property on

May 31, 2011. The initial complaint was filed on May 29, 2013, and was

amended on March 28, 2014. It included three counts: breach of contract,

fraud-misrepresentation, and violation of the Unfair Trade Practices and

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A10021-20

Consumer Protection Law (“UTPCPL”).1 The matter was heard before a board

of arbitrators on April 30, 2014, who ruled in favor of the Thais. On May 23,

2014, Appellant filed an appeal of the Award of Arbitrators’ decision. On

March 2, 2015, the matter was marked “Settled Prior to Assigned Trial.” On

June 12, 2017, Appellant filed a complaint in Equity/Rescission against the

Thais in the Philadelphia Court of Common Pleas to rescind the March 2, 2015

Settlement Agreement, alleging that at the time of settlement, the Thais failed

to disclose all of their assets upon which the Settlement Agreement was

reached. On the day scheduled for trial, September 18, 2018, the parties

settled the rescission action. The settlement entered into between the parties

was rescinded. This matter was ordered reinstated and was listed for trial on

March 15, 2019.

The bench trial proceeded on March 18, 2019. At the conclusion of the

hearing, the court found in favor of the Thais. On March 27, 2019, Appellant

filed a post-trial motion seeking an opening of the judgment. Oral argument

was held on April 25, 2019, at which time Appellant’s post-trial motion was

denied. Appellant appealed on May 9, 2019. Appellant and the trial court

complied with Pa.R.A.P. 1925.

On August 5, 2019, this Court directed Appellant to show cause why the

appeal should not be quashed because final judgment had not been entered

1 73 P.S. §§ 201-1 - 201-9.3

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on the trial court docket as required by Pa.R.A.P. 301. On August 7, 2019,

Appellant filed a praecipe for entry of the judgment with the trial court. The

trial court entered judgment on the docket on August 7, 2019.2

On appeal, Appellant presents the following issue for our review:

Whether the trial court committed error in failing to find that water and mold damage at [the] subject property occurred prior to [the] May 31, 2011 purchase by [Appellant] from [the Thais] and that [the Thais] failed to disclose said material defects. Subject property is 269 Calvert Street, Philadelphia, PA 19120.

Appellant’s Brief at 7 (full capitalization omitted).

“Our review of the trial court’s decision after a non-jury trial is limited

to determining whether the findings of the trial court are supported by the

competent evidence and whether the trial court committed error in the

application of law.” Kornfeld v. Atl. Fin. Fed., 856 A.2d 170, 173 (Pa. Super.

2004). It is not our role to pass on the credibility of witnesses, as the trial

court clearly is in the superior position to do so. Id.

The fundamental ground for all of Appellant’s claims is that she was the

victim of alleged fraudulent misrepresentations by the Thais.

In real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Sewak ____________________________________________

2 Appellant filed her notice of appeal on May 9, 2019. Judgment was not entered, however, until August 7, 2019. “[E]ven though the appeal was filed prior to the entry of judgment, it is clear that jurisdiction in appellate courts may be perfected after an appeal notice has been filed upon the docketing of a final judgment.” Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 513 (Pa. Super. 1995). Thus, we will entertain the appeal because judgment subsequently has been entered. Id.

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v. Lockhart, 699 A.2d 755, 759 (Pa. Super. 1997). “Fraud is a generic term used to describe anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture.” Id. (quotation omitted).

To prove fraud, a plaintiff must demonstrate by clear and convincing evidence:

(1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its 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) the resulting injury was proximately caused by the reliance.

Unsupported assertions and conclusory accusations cannot create genuine issues of material fact as to the existence of fraud.

Blumenstock v. Gibson, 811 A.2d 1029, 1034 (Pa. Super. 2002) (some

internal citations omitted).

An individual who purchases goods, including real estate, may bring a private action to recover damages caused by another’s “act or practice declared unlawful” by the UTPCPL. 73 P.S. 201–9.2. See also In re Zisholtz, 226 B.R. 824, 831 (Bankr.E.D.Pa.1998).

Section 201–3 provides that it is unlawful to engage in “unfair or deceptive acts or practices in the conduct of any trade or commerce” as defined by section 201–2(i)–(xxi). In addition to twenty specifically enumerated practices, the Act provides that “engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding” constitutes an “unfair or deceptive act or practice.” 73 P.S. § 201– 2(4)(xxi). In order to establish a violation of this catchall provision, “a plaintiff must prove all of the elements of common- law fraud.” Sewak, 699 A.2d at 761.

In turn, to establish common law fraud, a plaintiff must prove: (1) misrepresentation of a material fact; (2) scienter; (3) intention by the declarant to induce action; (4) justifiable reliance by the party defrauded upon the misrepresentation; and (5)

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damage to the party defrauded as a proximate result. Rizzo v. Michener, 401 Pa.Super. 47, 61, 584 A.2d 973, 980 (1990). A misrepresentation is material if it is of such character that if it had not been misrepresented, the transaction would not have been consummated. Sevin, 417 Pa.Super.

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