J-A13011-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JORY AND JOEANNA RAND, : IN THE SUPERIOR COURT OF HUSBAND AND WIFE : PENNSYLVANIA : : v. : : : BRIAN J. YOUNG, AN ADULT : INDIVIDUAL & CHARLES J. YOUNG, : No. 1375 WDA 2017 AND CAROLYN G. YOUNG, HUSBAND : AND WIFE, & BRANDON T. COLELLA : CONSTRUCTION, INC., A : PENNSYLVANIA CORPORATION, & : WIN REALTY ADVISORS, LLC., A : PENNSYLVANIA LIMITED LIABILITY : COMPANY, F/K/A WIN REALTY PA, : LLC. : : : v. : : : BARRISTERS LAND ABSTRACT CO., A : PENNSYLVANIA CLOSE : CORPORATION, & CAPITAL REGION : LAND TRANSFER, INC., A : PENNSYLVANIA CORPORATION : D/B/A/ BARRISTERS LAND : ABSTRACT COMPANY : : : APPEAL OF: BRIAN J. YOUNG :
Appeal from the Judgment Entered August 29, 2017 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 13-007617
BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED JULY 13, 2018 J-A13011-18
Appellant, Brian J. Young, appeals from the judgment entered on August
29, 2017 in favor of Jory and Joeanna Rand (the Rands). We affirm.
We briefly summarize the facts and procedural history of this case as
follows. Appellant, a licensed real estate agent, is in the business of
purchasing older homes, remodeling them, and selling them for a profit. In
2010, Appellant purchased a 100-year-old, three-story home with a detached
garage in the Southside area of Pittsburgh, Pennsylvania. Appellant hired
Brandon T. Colella as the contractor in charge of renovations for the project.
To create a more open floor plan on the main floor, Appellant directed Colella
to remove a load-bearing wall and replace it with support beams and columns.
The Rands purchased the remodeled house in August 2012. In December
2012, the roof leaked. The Rands replaced the roof in January 2013 and soon
thereafter noticed the floors in the house were sinking. An inspection revealed
that Appellant had not followed his engineer’s directives to secure a basement
column to the ground. The Rands spent approximately $70,000.00 to
remediate the overall damage.
In April 2013, the Rands sued Appellant, Appellant’s parents, Colella,
and Win Realty, Appellant’s real estate company.1 In September 2014,
Appellant filed a praecipe for a writ to join Barristers Land Abstract Co., the
____________________________________________
1 Prior to trial, Appellant’s parents were dismissed from the case. Colella settled with the Rands prior to trial for $50,000.00. Appellant’s parents and Colella are not parties to this appeal.
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settlement agent for the real estate transaction, as an additional defendant.2
The trial court held a four-day bench trial commencing on May 1, 2017. On
May 9, 2017, the trial court issued a verdict in favor of the Rands in the
amount of $35,764.35. More specifically, the trial court determined that
Appellant and Win Realty were jointly responsible for one-third of the verdict,
Barristers Land Abstract Co. owed one-third of the verdict, and Appellant
solely owed one-third of the verdict for violating the Unfair Trade Practices
and Consumer Protection Law (UTPCPL), 73 P.S. § 201-1. All of the parties
filed post-trial motions. The trial court granted the Rands’ request for counsel
fees and expenses under the UTPCPL totaling $12,286.54, as well as delay
damages of $3,161.57. The trial court denied all other requests for post-trial
relief. The trial court entered judgment on August 29, 2017. This timely
appeal resulted.3, 4
On appeal, Appellant presents the following issues for our review:
1. Whether the trial court’s decision that [Appellant] violated the provisions of the Real Estate Seller Disclosure Law (“RESDL”) by failing to disclose alleged defects of which [Appellant] either had no knowledge of or which he reasonably assumed had been ____________________________________________
2 Barristers Land Abstract Co. is not a party to this appeal.
3 Appellant filed a notice of appeal on September 22, 2017. On September 26, 2017, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on October 16, 2017. On December 15, 2017, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).
4 This appeal was filed on behalf of Appellant only. Win Realty is not a party to this appeal.
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corrected is not supported by substantial evidence or [is] erroneous as a matter of law[?]
2. Whether the trial court’s decision that [Appellant] allegedly engaged in fraudulent or deceptive conduct thereby violating the [UTPCPL]] is not supported by substantial evidence or [is] erroneous as a matter of law?
3. Whether the trial court’s decision calculating the amount of the Rands’ damages is not based upon substantial credible evidence and includes work that was not causally related to the alleged property defect?
Appellant’s Brief at 3-4.
We briefly summarize Appellant’s issues as follows. In his first two
issues, Appellant challenges the trial court’s findings that he knew that
remodeling work was not completed or performed correctly and proper
permits and final inspections were not obtained in violation the RESDL and
UTPCPL. Id. at 13-14, 22-24. Appellant contends that he reasonably relied
upon Colella, as his contractor, to obtain permits, perform all the necessary
work, and complete a final inspection. Id. at 16-17, 23-24. As such,
Appellant avers he was “without knowledge that the alleged material defects
existed or had not been corrected by Colella when he filled out the [d]isclosure
[s]tatement, or at any time thereafter up to the closing.” Id. at 17; see also
id. at 23. In his third issue presented, Appellant argues that the trial court
miscalculated the damages awarded to Rands.5 Id. at 24-27. ____________________________________________
5 More specifically, Appellant avers the trial court erred in accepting the Rands’ bill for remediation, because “[t]hat bill was a lump sum amount, and did not itemize the amount the labor or material costs for any aspect of the unspecified work.” Appellant’s Brief at 25. Appellant further claims that “[t]he
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Our standard of review in non-jury cases is limited to:
a determination of whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in the application of law. Findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as a verdict of a jury and will not be disturbed on appeal absent error of law or abuse of discretion. 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.
Additionally, this Court has stated that we will respect a trial court's findings with regard to the credibility and weight of the ____________________________________________
Rands changed the flooring from hardwood to bamboo because they liked it better than the original” not because they corrected structural defects as alleged. Id. at 26. He also contends that the trial court’s award was subject “to [an] offset for [a] $30,000[.00] gain the Rands made on the [subsequent] sale of the property and [for] the $50,000[.00] settlement from Colella.” Id. at 26. Finally, Appellant claims that the Rands also rented the home for a year prior to selling it and “[t]he amounts [the] Rands received in rent for the property should further reduce their claim of loss.” Id. at 27.
However, upon review of the certified record, Appellant failed to raise these contentions in his concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Our Supreme Court has stated:
Our jurisprudence is clear and well-settled, and firmly establishes that: Rule 1925(b) sets out a simple bright-line rule, which obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered; any issues not raised in a Rule 1925(b) statement will be deemed waived; the courts lack the authority to countenance deviations from the Rule's terms; the Rule's provisions are not subject to ad hoc exceptions or selective enforcement; appellants and their counsel are responsible for complying with the Rule's requirements; Rule 1925 violations may be raised by the appellate court sua sponte[.]
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011). Accordingly, we deem Appellant’s third issue waived.
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evidence unless the appellant can show that the court's determination was manifestly erroneous, arbitrary and capricious or flagrantly contrary to the evidence.
Gutteridge v. J3 Energy Group, Inc., 165 A.3d 908, 914 (Pa. Super. 2017)
(internal citations and quotations omitted).
We have previously determined:
The RESDL, 68 Pa.C.S.A. § 7301 et seq., provides that “Any seller who intends to transfer any interest in real property shall disclose to the buyer any material defects with the property known to the seller by completing all applicable items in a property disclosure statement which satisfies the requirements of section 7304 (relating to disclosure form).” 68 Pa.C.S.A. § 7303. The RESDL further provides, in pertinent part, “If information disclosed in accordance with this chapter is subsequently rendered inaccurate prior to final settlement as a result of any act, occurrence or agreement subsequent to the delivery of the required disclosures, the seller shall notify the buyer of the inaccuracy.” 68 Pa.C.S.A. § 7307.
The seller is not obligated by this chapter to make any specific investigation or inquiry in an effort to complete the property disclosure statement. In completing the property disclosure statement, the seller shall not make any representations that the seller or the agent for the seller knows or has reason to know are false, deceptive or misleading and shall not fail to disclose a known material defect. 68 Pa.C.S.A. § 7308. “A seller shall not be liable for any error, inaccuracy or omission of any information delivered pursuant to this chapter if: (1) the seller had no knowledge of the error, inaccuracy or omission....” 68 Pa.C.S.A. § 7309(a)(1).
Growall v. Maietta, 931 A.2d 667, 672 (Pa. Super. 2007)(footnote omitted).
Regarding the UTPCPL, we have held:
the UTPCPL has the purpose of protecting the public from unfair or deceptive business practices and provides for a private right of action. The right to pursue an action is as follows:
Any person who purchases or leases goods or services primarily for personal, family or household purposes
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and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this act, may bring a private action to recover actual damages or one hundred dollars ($100), whichever is greater.
73 P.S. § 201–9.2 (footnote omitted). The unlawful practices noted above include the UTPCPL's “catchall” provision in 73 P.S. § 201–2(4)(xxi), [which] provides liability for fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.
We note that deceptive conduct ordinarily can only take one of two forms, either fraudulent or negligent. ... The pre- 1996 catchall provision covered only fraudulently deceptive practices. The broadening of the UTPCPL ... makes negligent deception, e.g., negligent misrepresentations, actionable under the post-1996 catchall provision.
Kirwin v. Sussman Automotive, 149 A.3d 333, 336 (Pa. Super. 2016)
(original brackets and some citations and quotations omitted).
Here, the trial court determined that, prior to the sale to the Rands,
“[Appellant] was present for the August 30, 2011 inspection that exposed him
to a support column in the center of the basement that was not secured to
the floor.” Trial Court Opinion, 12/15/2017, at 5 (record citation omitted).
“The inspection report actually contain[ed] a photograph showing the
inspector pushing the unsecured column with his foot along the floor.” Id. at
5-6. Thus, the trial court determined that, “[s]ince [Appellant] was present
for the inspection and was provided the report showing movement in the
column, he knew of a past problem with a structural component but failed to
disclose it.” Id. at 6. Hence, the trial court determined that when Appellant
subsequently executed the disclosure statement, he was misleading when he
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stated that he was unaware of past structural problems with the home. Id.
at 7. Likewise, the trial court concluded that, “it was not reasonable for
[Appellant] to believe that [] Colella corrected the structural defect” when the
home inspection set forth that “Colella’s work appeared to be done by ‘an
unqualified person’ and was below local building standards[.]” Id. The trial
court also concluded that Appellant knew he had to obtain an occupancy
permit for a newly erected garage, but he failed to do so and then misled the
Rands about his knowledge of building code violations. Id. at 8.
We have reviewed the certified record, the parties’ briefs, the relevant
law, and the trial court’s opinion entered on December 15, 2017. In this case,
the trial court determined that Appellant knew there were structural problems
with the subject property and that occupancy permits were required but not
obtained. The trial court concluded that Appellant failed to disclose these
deficiencies to the Rands as required under both the RESDL and UTPCPL and
the Rands suffered subsequent damage. Moreover, the trial court recognized
that it was unreasonable for Appellant to believe that Colella corrected the
known structural problems, because Appellant knew Colella’s overall
construction skill fell below local building standards, well in advance of closing
with the Rands. Based upon our review of the record, we discern no abuse of
discretion or error of law. Because the December 15, 2017 opinion
meticulously, thoroughly, and accurately disposes of Appellant’s issues on
appeal, we affirm it and adopt it as our own. Accordingly, we direct the parties
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to include the trial court’s opinion in all future filings relating to our
examination of the merits of this appeal, as expressed herein.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/13/2018
-9- Circulated 06/20/2018 01:59 PM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,: PENNSYLVANIA. CIVIL DIVISION
JORY AND MEANNA RAND, Husband and Wife,
Plaintiff, CASE NO. GD 13-7617 vs. Superior Court docket nos. 1375 WDA 2017, 1402 WDA 2017 and 1407 WDA 2Q17 BRIAN1 YOUNG, An adult individual, and WIN REALTY ADVISORS, LLC, a OPINION Pennsylvania limited liability company, f/k/a Win Realty PA, LLC; .JUDGE ALAN HERTZBERG Defendants.
VS.
BARRISTERS LAND, ABSTRAT CO., a P6trisylVania Close Corporation and CAPITAL REGION LAND' TRANSFER, INC., a Pennsylvania Corporation d/b/a BARRRISTERS LAND ABSTRACT'COMPANY,
Additional Defendants,
COPIES. SENT TO:
RYAN.JAMES, ESQUIRE -CHARLES C: BELL, ESQUIRE. TAMES LAW, LLC DORNISH LAW .OFFICES, PC .1514 LINCOLN WAN; Sill:TES 303.,302 1207 FIFTki AV,ROVE:;;Stirrt 300' VviaTE,oAK, pA 15131 PrrtsBuRGN" 15219
DEBORAH R.,ERBSTEIN; ESQUIRE 'CLIFFORPTOTTLE, JR E$Quw 437 GRANT STREET Box24530 1806 .FRI-Ok BUILDING PiTts0ORGti,..TA :15234 PITISSURGH,,PA 15219 CIVIL DIVISION
AND. 1.CiEANN RANO, Husband and Wife,
Plaintiff, CASEN0.13-7617 SixpetiOrtorl actapt,nps. 1375 WDA.. 2017, :1402; WDA:2017 and 140.7..WDA 2017 BRIAN J. YOUNG, An adult individual, and WIN REALTY ADVISORS, LLC, Pennsylvania lunited liability company, filqa Win Realty PA, LLC,
Defendants.
BARRISTERS LAND ABSTRACT CO., A Pennsylvania apse Corporation And CAPITAL REGION LANDTRANSFER, INC., a Pennsylvania Corporation d/b/a BARRRISTERS LAND,ABSTRACI'COMPANY, Additional Defendants.
OPINION
Alan Hertzberg; Judge Date Piled:December 15, V17
I., BaCkground
Aftettraduating from Boston C011ege and workingfin sales -for a sportswear
company,; defendant Brian Youngpurchased a home in Pittsburgh. Be 'had 'a contractor
:make some updates to :it and placed it, for sale with his mother, a' rot eState agent. It sold
quiddy, and Mr; YOung said it was a SticCesSful. project. He then 'decided to change
careers and becatne,a full time "real estate inveStor." ,Mr. Young's investments,, however,.
are exclusively .w.hat i coining* called "house 'flipping" in which. he will "buy cheap,
rehab and sell for: a:profit.:: ." Transcript of -Non -Jury -Trial ("T." hereafter),, p. 1.8. Mi. Young'fknext prOjectwas.the purehase of a: home inl)ortnont.,Borongh for .$0;000 that
. he 410 said'.wentwlI. He then purchased and .quickly sold tWo.mOre kornesirt .DOtmo4t.
All Three Dortiont .projectS. 'Wet& Eniñor retioVationt:. WrOlVig:tipdating .esthetics, with .
Brandon Colella serving as the contractor in Charge Of the renovations.
As.Mr. Young was "flipping" the three homes in Dormont; he determined
he could' make a;larger'profit if he, wed. on. sales; commisSions:by becoming; a licensed
real, estate, agent. In :2009. Mr,. Young:took tkrequired c4),IIMS,. passed the: examination,
and in Mara. of 2010, became :a:licensed, real estate agent; Mr. Young:then turned'his
attention to' the Southside ofPittSburgh and purOhased a home on Fox. Way that "was a
gut job. tBrandon:Colellal gutted the. property and.rewiredit; replUrnbed it,. installed; new
drywall, new flOOrS; neW,kitehen, ItwaS more extensive: than the DOrmOnt properties."
p..615. It also sold 'quickly; and Mr. Young said there were. no complaints:
In theinli.of 2010 Mr.. young pi-an:sea athree 'story. home with a
detached garage on the Southside OrPitt.Sburgh known As 2,315 Jane Street., The hOrne
'Was built over. drielnindred yeatt ago,. and Mr. Young purchased it fdt $.152;000.,
.Brandon COlella.recorimiended that Mr. YOUng.,completelygut 2313 Imo Street; but Mr;
Yong instead decided' to save Money by Jirniting renoyaiionkto those that treated :mor.g PAT:acti8reapPear44CP; $1.1PhFa AB: "open..COnCept":firg flOor,, In cictoher Of 2011 Mr..
'Young liStedIhe home for :Sale for over 4400,00'o With his broker, Win :Realty AdViSOrs.
This broker catered 'to agent/investors with a commission of 7()40, in fayor of the agent: and agents Armitted t engage egelusively in IransaCtions:.invOlving: themselves as
pUrcluiSerOtiSeller. 23151ane,:hoW0et, did. not sell :eftadkly: at that hence Mr.
Young reduced, the: price.
2 outgrown the townhouse: they octupied.on the Southside. They were intetated in finding
another home, .on the Sotithside that was larger, had a garage 'and yard and needed
minimal renovations. They' found '2k5 Jane :Street had everythingthey were looking for
andpurchased it from Mr. Young _for $315;060 on Augusta), 2012.
On Doternber.24, 2012, during, a rain water poured .410: the :home from a
leak in the roof, Earlyhi January -the Rands had a cOntradtOr 11:Anted:Tennis Roofing
install, a new root :In creating the "open concept," a load,bearing that:ran:from the
frOrittO the rear Of the home wa$,Tptfloyed :and replaced: with:hunns..and beams:
Almost immediately after the 'roof teplactitterit the. Rands began to 'feel Nhat the house
Was changing; the floors' were, sinking" (T%, p.529) and they saw cracks, in the drywall
that covered the:Midapan support columnbn the firat'floor. it,:turned,ont the directive :
from 'the' engineer who &SOW 'the eOlumhS, and beams' to '"assure tOntinuOuS load path.
to the fOoting in the basement! p. 354), was nbt followed. The Rands then. had 16
spend $70;126 to replace 'the systentof beams and edlumns Young had installed and
to repair !other 'Impacted components Of *the ,home.
In April of 2013 the Rands sued Mr. Wiling, Mr. COlella and Win Realty' in
September of 2014 Mr. Youngfiled. praetipe for a writ to join Barristers Land Abstract
Co., the settlement agent. that closed the real estate transaction, as an Additional
defendant, Prior totrial Mr: Colella reached a settlement with- the Rands,, and this Court
'excused him ficiinitither participation in the litigation. The .dispute: was assigried.to me
for disposition'vfa non-jury tridl,which was. held .on May '1, 2, asand 4; .2017. On. May -91s,
The Rands also sued Mr. Young's:parerts, who signed the -deed, but they were:disrdssed:frorn,the case 'before trial. 3 jointly by. Mr... Young and. *Win. Realty., .$11,921.45' owed by.BatrigterS.Land..ANtract and
:4:additional '$11,921.45 owed only ,by Mr.. Yottrigkr. violating the Unfair.
Trade Practices_ and Consumer protection' Law ("LITPCPL'.' hereafter). $eel3 ,§201-
I Cr seq. The. Rands.;filed the. first lequeSting clarification. of the award
of. damages,. counsel_ fees iand eXperists !of S53;419.30. under the .UTPCPL and delay
damages under petioylvanialtilel.of Civil Procedure.no,238.. All the other parties. then
also 'filed Mcitioris; aileging. I cOmmitted amtl(OpliCity :a:errors in my. verdict. I
awarded the.. Rands 0Outisel fees and. expenses 6012;28654 and delay darnages.of
SM6.1,57...but denied all otherpost4rial motions judgment Was enteredand..appeals, .
taken. to the Superior Court of Pennsylvania 'by ...Mr., Young, 'Win Realty 'and :Barristers..
'Each .filed a concise. gateitent ,OterfOrStoinplained Of on appeal,. See. Pennsylvania Rifle
of:Appellate. ProCeditre.-no,:1923, The balance Of addieSS.each error
;identified in, the.COndiSeStatements
IL .Esrors Claimed by Mr Young
In- paragraph 1 olMh Young's :COncise4tatenient, lic..COriterids itiy.'Non.4ary
Verdict and Verdict. Explanation.is .uncertain and ambiguous... Thelitstpartieg that registered .a..problenyWith my verdiCt.and.explanation were, the .Rands in theirposNrial
mOtion xecitiegt.forl'Olarification": Of the, award. of *damages, Mr Young, 'Win..:Real.ty and Barristers also then raised Misissut in their post-trial motions ***RAS Mr, Yotirig!s;
and,Barriaters?.concile.StatementS, The' Rands; alleged.a conflict *existed-between...the
Verdie(-aiiidtiritg Of $11,.9.21,45 against defendants. Young and Win :Realty ..and
against additional defendant Barristers because; my :explanation stated; that. these.
4 .amount"split equally between the remaining DefericlaritS and the Additional, Defendants."
Because. the: defendants: and additional .defendants ke comprised Of three. parties, the
Awls construed the "split equally' language to call for.diVision of the. $23;842..96
equally among each of the three parties.. However,, that was definitely not what.I
intended in the Verdia I determined 'Win Realty. was vicariously liableftir Mr. Young's
conduct,. hence Win Realty could only be jointly liable with, Mr, Young.. .0n August 1$,
2617 attempted to clarify that. the:explanation "was' intended to inform the partiesthat
the amount' of $23,842.90 was Split equally between. two groups,. the Defendants and the
.Additional Deferidarits, with each group ding being teSpOnSible for an equal amount .(the
Defendants are. responsible for $11;.9n445 and the Additional Defendants are responsible
.for $11,0U45)," Apparently,. this clarification is acceptable o. the Rands and Win
Realty but :not acceptable to Mr. Young and:Barristers. With several factors That made
the verdict complicated .(e:g:, behavior attributable to a Settling defendant and enhanced.
:damages. under the UTKPL applicable toonly one defendant)," hoped My "Verdict
Explanation" wOuld.astist the parties in understanding the verdict. I apologize if the.
parties. were not 'assisted,. but. am unaware of any authority for this. constituting reversible'
error.
In paragraph 2 of -Mr, Youngs concise statement, he contends I made !am errorl)y
finding Mr. Yeang76iled disclOse material defects because there was no. *evidence he
knew pr. Should have knOwn.of the defeett. Mt.. YOurig; hoWeyprz409X:theAM4sua1step
ahayMg a horite:inSpeqiort done 'before he. listed 23.15 jahe &rot for sale. Mr. yOtifig Was: present for the August 30, 201.1 inspection that exposed m to' a support column in
the :center of the basement. that:was hot secured to the flOOr. T.,, pp. 1.1642Q,- The, unsecured, column with his foot along the floor. Ste: Exhibit 29; p. 15. Older the
headings "Summary ofAreaS Requiring Further Evaluation": and 'General InfOrMatiOn,"
the .repOrt,alsO states:
Amateur WOric-It appears, that non professional -or an unqualified' person or persons, attempted to perform repaitS.. Ti**Orlc.is not to The typical bitilditig*andards: of the, area, Repairs Swill generally be:more expensive becauSe of :the ninateur*Ork:
Mr. Young did not disclose this inspection report toithe Rands before they purchased
2515 Jane Street?, and lie' did not voluntarily provide it to then When they.reqUeStecl
during discovery proge4ing.,
P.ermsylVaitia'S. Real Est* Seller Disclosure. Law- required Mr. Young to. include.
"Strtiettiral problems" 08' P.S.§7304 (b)(0) in, the,Property Disclosure Statement provided tO the Rands; but Mr. Yonne S: distloSure-staternent answered -"No7 .0 the
(ineStion, %re yg.i. aware of any pas( or present movement; ;shifting, deterioration, .or
.other problems ,with walls; :foundatiOns, or other structural components?' Exhibit 15; ¶
Since, Mr. Young *as VreaelitfOr -the inspection and: Was. provided :the report
shoving movement: in the column, he knew of a past problem with 6.Strudurar
corriptuierit but failed to 'disclose it. Hence, there was: evidence "Mr, Young knew ,Of the,
defeerand my determination that he tailed to: disclose it: was correct:
Mr. Young testified 'Brian COlella told him h::WOuld repairall the prof
itispedien:repOrt,:heno :Mr,. Young argueS he: is. not liable for- the: ornissiOnin -the
property diSclOStireStateMent.beCause theOrnisSionwaS based, on a reasonable 'belief
that a material defect- had been* corrected §73Q9 (a)(4 This provision
cannot be -applicable to a eller's disclosure of a. past defect because it :monk! allow
6 provision applieSWhert. a seller:denies 4 defect currently exists because the teller
:reasonably-believe& it. Was corrected. Because Mr.YOurtg'S OrniSsioti concerned the
existence a,structural defect in'thel!ast, §73O9(a2'is not applicable. Even if 68 PS. ::§7309(a)(2) were, applicable, it Was.ribt rea8Ohable for Mr. Young.
AO -believe Brian COlella corrected the stru_cturatdefect. The purchaser 'a the Fox Way
home testified that' mt. Young WasnOtirted that Brian Colella failed ;to inalserepaitS Mr.
YOung had assigned to him itithe,stimmer Of 2011., T., 0.,793-710,.
Young's home inspector saying Brian Ccilelles work appeared to be done by "an.
unqualified perSciii" and was baow local building stoodols;. it' is not reasonable to .eXpeCt
he could correct the 'structural defect. Therefore Mr. Young did not have a"reasonable
belief" that.Brian Colella corrected the structural defect.
.In paragraphs 3 and: 11 of Mr. 'Young's: concise 'statement, he contends I Made ari
&tot' by finding be violated VTifbCP.lid, The sale of residential property is 'subject tci
theUTPCPL *, Gabriel V. 011ata,368 Pa. Super, 183? 534A2d 488, (i977)), and
misleading Conduet ;by a, seller is violation of the "catchall provision" of the w:70
See 'Bennett v...A.T: Masterpiece Homes v. BroadSprings,.LliCi 2012:PA Super 60,40'
Aid 145 and 73.P.S. §2012(4)(Xxi), The statement in the written disclosure provided to
the Rands that Mr. 'Y,oung;:wa& unaware ofa past: Structural problem was misleading
conduct, In addition, a- City Building inspector WO-tined:Mr. Young he ;needed AO obtain
an occupancy permit because 'the old ,garage had been demolished and a;neW one erected
Without fire -rated dryWall,. See T, pp. 194-196 arid 205. Mr,`YOung,,however.,.failedto
obtain the ,occupancy permit, which resulted in the City issilinta.citAtieh to the Randsfik
viOlating:the Building -Code. The:propertydiselpsure statementrnislead Rands. about 7 'was unaware of viOlatiOnS:ollital 14*S:or btilditigfoidinanceS. Exhibit15 19(c) 40419(4 Since lvfp. Young mislead' the Rands about the:Strudintal problem and
the:lack Of. an OcCtipaney pet:mit fOt: th.e; new garage, my finding :that he, violated the
UTPCPL was. correct.
In paragraphs 4, 5, 6 and 8 Of Mr, Young's' COW* Statement.; he contends
erroneously found him !liable:for repaitS to items identified as defects' in the RandS' home
inspeCtiOti. There IS no merit to this' ..Qqntention because held Mr. Young liable,
exclusively for -repair casts' Mated to the StiliCtural.problern and other impacted
components of the 'home, such as the float :and drywall. Ifi the Verdiet.Explanation,
began,..my calculation:of damages with $70, 126.18, which is thetOtal .of the invoices
admitted into eVidenCethat Orate tp repair of the ,Structural problem and other impacted
components of the. Men, reducedthe, damages, by $40,283;28' for, sixty-six
.percent of the behavior attributable to the :settling, defendant? to $23;8490: The joint
'verdict againstUt.Y.owig and 'Win Realty, was for half ofthatatnOtint, $11;921.45, With:
another $11,921:45 againg:Ur, )(Olin alone for violating theVITCPL., -Since all'
'damages against Mr. Yodagitt.fitlii the cost of repairs' necessary to resolvethe
:sruCtural defects, he was; not foundliable for 'the repaieofdefectS.: identified. in :tie Rands'
'home inspection. 1[cAcc7 IOW not the ,error claimed'by Mr Young,
In paragraph 71of.Mt.. YounesicOnciseStatetifent, hecontends Lerroneously held
him liable for structural problems that Were not ViSibletO him prior to closing .and that Aid,
not, occur until after, the closing However,: Mr. Young was.preseritforlhe: inspection Of
2 intxhibits309 and 40, NYCEINCinvoiCes:for $2,000, $54,474; $5,78; $1,20Q, Roy P.E: invoices for$700,.$600; $1,600 and $600 and Lumber J4.4191004 invoice fOri%3,574,18 for a total of $70,126.18. along .the ,floor of the basement support:column. See T.i,pp. 116-120, Hence; ;contrary to.
Mr. 'Young's contention, the..strtich.tral problem, was: visible to hitt, prior to clOsing,
Relative to Mr. YOung'S:Claitti-that::the StruOural.problems did not occur until after
:closing, the credible, Uncoritradieted .opinion tatty; Kiln, .Jr., RE, was AO milli* deviations from his, design caused the structural problems. See T., pp. 327.334. Since
these. deviations occurred during the. renovation. overseen 'by. 'Brandon Colella, they did
not' occur' after the closing. Therethie,.1 did rug make.: the errors alleged by Mr; YOUng,
In Paragraph 9 of.Mt Young's :Concise stateitient heColitends I made ,an error
because a provision.in the Agreement:of Sale releases him from liability. This proVition,
paragraph no,p; states,;
Buyer releases, qtiit.claiinS:and fotever digcliargeSsELLER, ALL BROKERS, their LICENSEES, EMPLOYEES and any OFFICER or PARTNER ofany one ofitheruand any Other PERSON, FIRM .Or CORPORATION,whtymay be liable by or through them,,frorn any and all claims, losses or demands, including, but not limited to,, personal initiry- and:propeity. damage and all of the COnSerftientegtherea .whetbeilcRov.v.P. Or not, which may ,arise from the presence of termites or other woodboring insects, radonljead'based paint hazards, mold, fungi Or indoor air quality,. environmental hazards,, any defects in the individual otHotleVRge disposal system or deficiencies in the on-site water service system, or any defects or Conditions. on the Property, :Should Seller be Ifi defalilt Under the terms of thiSAgreetrient:Ot in violation of any Seller disclosure law or regulation, this release does not deprive Buyer of any right to Tonne any remedies: that may be' available under laVoreqUity, ThikreleaSe will survive:settlentem.
elearlyi the proVision does not release Mr. Young from liability ithe. violated any seller,
'disclosure law.. Since I...Young:did violate Pennsylvania's Real'Estate.Seller
Disclosure LaW, .1 correctly determined that he was not Teleased from liability,
In paragraph '10. of:Mr. 'Young's concise statement, he contends-I madeatt itor
because, the Rands waived their claims of defects:to:2.315 Jane. Street by signing condition 9 e
These documents do contain waivers, but none purport to. waive unknown claims diii to
Mr. YOting,'S cOntealttient *Of defects.- Instead, they indicate, that the defects revealed:by
the Rands. home inspectidit haVe: been repaired or they' have waived their right toiliave
them repaired, and -with the release of eSerOWInOneyhoW the $1.5.;00Q4Crowed at
clOsing:with.Barristers due to. trirepaired defects WastO be diSbiiited: With the Rands not
haying waived tinknown Claims chteto Mr. Young's -concealment of defects', my-decision
Was correct.
In:paragraphIZ of Mr. Young's concise .statenient,*he contends I erroneously
..failed '"tO. determine whether :PlaintiffS had a fee agreement: With. counsel,- the amount of
Plaintiffs' responsibility -for paying:their fees,o4t-of-pocket, or:whether' there. was a
contingency recovery in total,t)t in part for their:attornert feeS:r This Contention, is
ipcmcql, The. thirty-eight pages- ofdetaile.d invOices provided to. Mr: Yung:-and .1 and
the Rands' tnOtion:fOr attorneye fees and costs contained the information I used to Make
the detertninatimisMi. YOUngallegesI did not make, These documents, established that
the Rands' would pay their counsel at the rate of $1.7.5pet hour, that the .Rands would,pay
their counsel no more -than' $3q,000: in attorney fees and. expenses (the inVoites
dernOnStrate.reeeiptiby counsel, of 00;009 -from the. Rands), and that the amount over
$30,000 k$53,41930 was requested themotionywould be dpVitjgOt award from
the court. Since I did determine the- Rands!. fee agreement with their eouttsel,'thefeWaS
nO. eh-60441y attorney fee award,
In paragraph 13- of Mr.. Young's' etintiSe :statement, he contends I erroneously
failed "to direct PlaintiffS to: file of record invoices setting forth their COUrisel'S
plaeSsiOttals ServiceS and time:spent for each service performed, and -the costs 'claimed, appellateireview.7 This contention is. disingenuous because :the itivoiteS. would have been,
offered into evidenteif I helcian..evideritiary hearing.. I provided Mr. Young with the
opportunity for eAdentialy:hearing, but he declined ;to have 'an evidentiary hearing,
See 6123/17 Order of.Court rail of :counsel havingagreed during_ a telephone conference'
call held yesterday that there will be no. evidentiary hearing on Plaintiffs' Motion for
Attorneys fees and 'The fact that the thirty-eight pages' of. counsel's invoices
were provided to Mr. Young and I but were not:either offered into eVidenCe. at 'a hearing
or attached to the Rands' .11totionlad no. effect on the ability .of Mr, YOung and,I'to
review :them, Hence,:there Is no prejudice to Mr. Young and no ihipaCt on. "review by the
trial 'Court??' RelatiVe, to Mr. Yoting'Surgurnent:that the! record .is incOinplete for
appellate reviewia.docurnerit With cotinsel.'S'. Wirt and -hourly rate submitted at the end of
-tri4 withcounseks ;assertion that the hourly fate Wasfair and. reasonable was; held by, die
Siipeiior Count Of;P:enrisylvaniatdbe:sufficientinforinatiOnfOr the trial court's
deterthination of an attorney fee award .under the:U7CPL, See Wallace 'v. Pastore, 1999.
PA Super -297,, 742: A2c1.1090 it: .1094. Siitee. I posagssed more information, than the trial
judge:in Wallace V. PaStore4 I was edited it:110t*114ifiii0 the Rands to filç ereOrd their
attorney's invoices.
Mr. 'Young's final' cantention,, set 1o.rtlj'Ii, paragaph 14 of his concise statement,
i*$ tat erroneously failed -to consider the faCtOrt for attesSing:the reasonableness of
Plai'ntiff's COurisel feet settOrth in Boehm v. Riversource Life Ins. 'Co. (201.5..PA5uper.
1204.117 A.3d 308). The. factors are:
(1) The, time' and 'labor required, the novelty and difficulty of the questions involved .and the skill requisite properly to .conduct the 'case; (2) The customary charges of the members*, of the bar for isimilar services; ,(3) 11 the clients, from the services; and (4Thb contingency or certainty of the ,compensation.
Id. at 335, Mr. Young, once again,, makes an inceirtediconrentjon because 1,. in fact
considered these four factors. In assessing the $12,286.54 counsel fee :award. I
determined attorney James spent more time than another: attorney'with more experience
would have spent and allowed only 6.5 of the 276 hours he devoted to the dispute in 2013
and 2014., :Mbst of the time I: credited to dttOrney James thereafter involved his :
Attotistice, at witness and party depositions. and :preparation:for thelerigthy trial, which
:either. was 'within his control or was reasonable. Attorney James charged ,$175 per.
,hour,, a:rate Mr; Young did :not complain abtiOt; AO' that, I *Wm is PliStornary for
similar services. I considered :the, appriVirriately $109;090 the Rands spent repairing
2315 Jane Street :4N that attorney lames' representation was:suCcessful hi producing
$50,000:settlemerititbrn BraridOnColeila plus :a verdict of $35;764. In doing.w, I
awarded:a smaller percentage of the, counsel fees credited 'to: attorney Jagres, before the
cole114,settletrent,17 percent (based ion deferidatitOliati the 50 perceM :I awarded
afterwards. 1,00**i-that payment for' attorney' James' services from :Septertibet of 2015 to .the"May.; 2017 frig Was .aintingent ;On my award and ncit :yet paid; but I still
.eliminated 25 of the' 111 haurs'he spent dirririttliattirne period because ,they were. not
necessaty. 'Having considered the appropriate factors and awarding attorney
percent of the fees and expenses he T.p u , ply ,connsa fee .awar4 was. reasonable and
not erroneous.
3 itilaot; neit.:tho.endlof..h4r; Young's answer top1ainOrs:rnifon.f.0". pust,trint.tatief; Young seems to fodieate.t$:.per hour is.lowar.thalf tiwcustomiryofiggos,-4yertitig.iltha(if4kit.f*it:tfie.lackof everfeuce.91Plaintiffeinorneyln- hanOinoivitjipiptiotivattOS. 12 Errors claimed. byWin Realty
In paragraph '1 of Wiii.ltealts CARCisp :statement; it contends' made an :ersOr._ b,y
:holdingit vicariously liable for the misleading propertydisciosure statement:pieparedby
Mr. YOung, Win ;Realty admits that, a. broker is' vicariously liable f4i- the misleading
conduct of its agent COmMitted in the,course.of his or :heterriPlayment. See Aiello v. Ed
Sajce, Real Estate; Ric., 50813a..M, 499 c1:20 (1985). But, Win 'Realty argues:that--
preparation of the property disclosureStaternent was done by Mr.-Youngin his capacity
as 'the, seller, not 'as a..rcal estate Agent; therefore the4nitleading conduct was not
committed in the cotirse: of his employment. However; Pennsylvania's. Real Estate Seller
tkisCloSuretaw plaiily establishes that a j:01 estate agent:is:liable when,Ife or she know
theproperty :cliselosure,statement prepatedby the: Seller is misleading, '"68' Pa. C.S. 7308 and 7310: While Mr. YOnigactedin the' capacity of seller,and gat estate: agent;
it would be impossible for his. knowledgea,s. a real estate agent' tO be, differentfrom his
knOwledge as: the seller; Since, real estate: agent Young knew :the property diSclostire,
statediehtv4s miSleadingi I correetty found broker -Wit Realty vicariously liable.
In paragraph 2, Of Win Realty's concise' statement, it :Contends I made an error by
finding it vicariously liablefOr. Mr; YOung"sn_egligent remodeling activities.
allten1041trA0.ctivity was performed under the 'cliicApn of Brandon C.01014 antl
found Win Realty was vicariously liable based on Mr. YOung's knowledge that the
property disclosure Statentent was misleading!, there is no merit tO: this allegation
Of error..
fparagrapliSI,, :$; 9 and 10' of Win Realty.':.g :Ctin6isp statement; t makes.
the same contentions that Ipreviously,-addreSSed under; tile effort:claimed by Mr. )(eking.
13 In paragraph.i of Barrister's'concis'e: stateffidnt, it Contends my verdict was erroneous
because there was. no ey,idence thatit owed a duty to Mr. Young or that it was negligent..
While the AgreerrientolSale between Mr. Young and the 'Rands431ates:the obligation. on
Mr. Voting to obtain: an occupancy permit and./Or zoning certificate, this obligation
tOritirielris aSsUmed, by Barristers and its cOrripetitor title companies as part .of the
services title Companies .are paid to perfOrm.WheriSerVing as; Settlernern agents in. charge
of closing, a real estaintrarisactiOri.4 See 6112.07 and 654-655; :this
ObligatiOn, Barristers had a ditty .to Mr. Young tO, us reaSonable care. See Pearson v.
Central Nat. Bank Of Philadelphia, 102 Pa. Super .111, 15.6 A. 560 (191) (tickling
settlement "agent liable: to -purchaser, who did not purchase title iriStitarice, fOr delinquent :
water rents). The evidence OfBarriatere negligence essentially was:by admission of its
vice president and, general manager that it Should :tia\re, but failed` to notify Mr; Young or
:the *Rands; When the: zoning certificate. provided to it by the. City of Pittsburgh stated that
116 occupancy permit had been issued and the proposed Sne: T:, pp..
680. Since there was Undisputed eVidericn ea duty owed by Barristers' to Mr, Young and Battiptere negligence, my'verdictagainst Banisters Was :correct,
In :paragraph otparristere concise statement; it:COntendS I erroneously :imposed a..contractual duty when .it was not a party to the Property Disclosure, Statement.
'Ortlie Agreement of Sale: FletweVnt,SarriSters admitted that it:agreed:to obtain the
.,.lien occupancy permit and.zoning certification. Hence,,Barrikeit :had atontraOtuat duty,
4 the,110-1.-.Se41qme.rit $.1416410.1.; from.the . . '002' closing shows' Barristers charging $2,215totitie ..
p:epAtetiOn and $15 for notary . deedinsurance,:$135:fcr
.._ fees being reimbursed $20Z701:0 r letters, _ .
Which included:$1430.13etriStOst0000..to:the City ofPittsburgh for the zoning certificate. .14. ;liability wider the. terms and conditions: of. the- Property: DiSCIOSure Statement and !the
Agreement of Sale,: :tiOweVer, thereisno statement in either :dottinent that releaSeS the
settlement agent from negligent: donduaor breachingits' agreementto prOvide :settlement
-services. Therefore, 'Barristers -was riotreleaSed Iran liability..
In paragraph 2,c, ofBarristere concise statement,, it Contends "no evidence; Was
preSentednt trial:that-garristera was: required to obtain occdpanCy permit?' TO the
contrary; there Was tindOntradieted evidenCe presented at trial that Barristers Wassaluire4
tQ obtain an occupancy. permit.
Jnparagraph 2.d, -of 'Barristers' :conCise statement it contends there was no
eVidente;that the lack Of an occupancy permit adversely affected the 'title to the property.
While,this is true, liability, was nOt. prChtis'ed on Barristers, title insurance responsibility'.
Inatead, BaFdsters, liability was,premisecl on perfOrmanee ofits. Settlement agent,duties.
.In paragraph of*Barristers' Concise, statement; it contends there was no
evidence that lack Ofan pc;gnpancy permit resulted' in any damage:to:Mr: Young ot the
'Rands. To'the contrary, the Rands.credibly.teStifiecl that they closed on
the purchase of 2315 Jane .Street if Barristers!had.inforrified them there was' no occupancy
permit and their proposed -use Hence, the..damage§!shatainetitag result of the
purchase of the. property -would tavebeen !avoided had:parristers done its' job properly.
These 'damages Include not only the $10.,126.18 the. Rands went to repair the structural.
problem, but:the additiOnal amount they spent to remove ;the dryWall in the garue an0
replace it. with :fire; rated: drywall. after being cited for violating the 'City Code.
l'The gandsiatcttgr,tbj$ wetkinihi,t#age:but were unable -to, locate an inveice:tha( egg of material 00410010 Pe garage;. 15 .alleged itiOnSittericy iii. the: VerdiCt and "Verdt Expatiation that 'I previously -addressed
under the 'errors' 'claimed by Mr. YOUrig.
In paragraph 4.of Barristers' concise. Statement, contend S I erroneously
calcUlated'datnageS by failing "to deduct set-off&frorn. the gross: arnOttrit claimed by the
Plaintiffs;' The only argument fOr cletlucting.:Set7OffS that was not, addressed under the
errors claimed by Mr, Young is that rent reeeiVedand.the higher sale rice 'obtained when
the R4441.610040 tqCalifornia should have been deducted from the calculation Of
damages. HOWeVer, it' would be improper to deduct eithetof these items for at' least two
reasons, first; receiving Tent and'apprediation in 'the value, of real estate over time
typicallyAccrue to any,putchase-rorrdalty, and the Rand hopw:f0r these benefits before
they purchased the home. Second, if they could be deducted from the damages,
'numerous collateral iSstte$,WOUld have become :relevant fe.g,1 any offsetting cost of rent
'the Rands paid when they relOCated, Whether tentrebeived -WAS offset,bythe mortgage
paymentand other, expenses and whether the: cost: of any neW home. purChaSed by The
,Rands, weeded the Sale price obtained; for 231$ Jane Street). Therefore, not:dedtiCtihg
the rent received' and :4ghet sate price obtained. w.as .appopriate.and not' erroneous
Barristers" final CortientiOn, setItitthiti paragraph .5 :of 'its ,Coucise:staternent, is
that any. verdict was pr;TOneous 'because, the title insurance ptiiicy otCludes clairnsTelating
to zoning and: occupancy permits; Since ,Bar lgers' liability was' not premised .on the title
insurance policy; my verdict was correct.