Schwarzwaelder v. Fox

895 A.2d 614, 2006 Pa. Super. 61, 2006 Pa. Super. LEXIS 252
CourtSuperior Court of Pennsylvania
DecidedMarch 23, 2006
StatusPublished
Cited by20 cases

This text of 895 A.2d 614 (Schwarzwaelder v. Fox) 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.

Bluebook
Schwarzwaelder v. Fox, 895 A.2d 614, 2006 Pa. Super. 61, 2006 Pa. Super. LEXIS 252 (Pa. Ct. App. 2006).

Opinion

OPINION BY JOHNSON, J:

¶ 1 Cheryl A. Schwarzwaelder and Steven B. Schwarzwaelder, individually and as trustees of irrevocable trusts bearing their names (the Schwarzwaelders), appeal the trial court’s order granting preliminary objections in the nature of a demurrer and denying them leave to amend their complaint. The Schwarzwaelders contend that the trial court both misapprehended the elements of the common law and statutory causes of action they assert and erred in concluding that they have no standing to seek the remedies they claim against the defendants named. We do not find reversible error in the court’s disposition. Accordingly, we affirm its order granting preliminary objections in the nature of a demurrer.

¶ 2 This matter arises out of a real estate sale that was successfully concluded almost two years before the commencement of this action. At all relevant times, the Schwarzwaelders held record title to 173 Backbone Road, which consisted of a large home and acreage in Sewickley, Allegheny County. Seeking to sell the property, the Schwarzwaelders contracted with Howard Hanna Real Estate Services which, in turn, listed it in West Penn Mul-ti-List, a service that gives real estate brokers access to the listings of other brokerages and thereby allows maximum exposure of their clients’ properties. In exchange for participation in this service, the listing real estate brokerage agrees to pay any licensed realtor or agency who produces a buyer for the subject property from the proceeds of the sales commission paid by the seller. Howard Hanna listed the Schwarzwaelders’ property at $1,600,000; hence, the anticipated sales commission equaled $80,000, Hanna to pay half that amount to the seller’s realtor.

¶ 3 On July 26, 2002, Richard Dobrosiel-ski, Jr., represented by Fox Real Estate Services, offered $1,450,000 for the property. To document his ability to consummate the transaction, defendant Julia Fox, who allegedly acted as Dobrosielski’s realtor, represented to the Schwarzwaeld-ers’ realtor that Dobrosielski had pre-ap-proved financing. Accordingly, the Schwarzwaelders accepted the offer and the parties scheduled an initial closing date of October 1, 2002. As the closing date approached, however, Dobrosielski acknowledged that he had not been pre-approved, and requested an extension of the closing date to October 15, 2002, to allow him to obtain financing. On October 9, 2002, Dobrosielski further documented his intention to proceed by producing a letter from his mortgage broker purporting to guarantee financing at a stated rate and term and committing to pay the Schwarzwaelders $75,000 if such financing could not be obtained. In addition, the mortgage broker paid the Schwarzwaeld-ers $2205.91 as compensation for the delay between the original and rescheduled closing dates. The broker did obtain financing and, two days later, on October 11, 2002, the parties closed the transaction, vesting Dobrosielski with legal title to 173 Backbone Road. The sale yielded a commission of $72,500, of which Howard Hanna paid $36,250 to Fox Real Estate Services, as [617]*617determined by contract with West Penn Multi-List.

¶ 4 Subsequently, during the summer of 2004, the Schwarzwaelders learned that Dobrosielski’s alleged agent, Julia Fox, did not in fact hold a realtor’s license and that Dobrosielski’s wife, Jill Fox, was the principal of Fox Real Estate Services. Consequently, they commenced this action, alleging that Dobrosielski, his wife, Jill Fox, his mother-in-law, Julia Fox, and Fox Real Estate Services had breached the agreement of sale by failing to close on the originally scheduled date and holding out Julia Fox as his agent when she was not, in fact, a licensed realtor. The Schwarzwaelders alleged further that Do-brosielski’s failure to disclose the status of Julia Fox and Fox Real Estate Services constituted fraud, intentional misrepresentation, and negligent misrepresentation. Finally, the Schwarzwaelders asserted that the acts and omissions of the defendants, including Jill Fox, constituted Civil Conspiracy and Conversion and violated Pennsylvania’s Unfair Trade Practices and Consumer Protection Law.

¶ 5 Responding to the Schwarzwaelders’ Complaint, Dobrosielski and the Foxes filed preliminary objections in the nature of a demurrer asserting that the claims stated failed to raise cognizable bases for relief, as each had either merged with the deed upon closing or the facts pled were not adequate to invoke the statutory and common law remedies asserted. During oral argument, the Schwarzwaelders sought leave to amend their complaint both to include additional facts and to add Howard Hanna as an involuntary plaintiff if necessary. The trial court, the Honorable Judith L.A. Friedman, concluded that no amendment could create an actionable claim given the circumstances already alleged and, consequently, denied the Schwarzwaelders’ request to amend and sustained the defendants’ demurrer. The Schwarzwaelders then filed this appeal, raising the following questions for our review:

1. Whether the Complaint is legally sufficient, and if not, whether the Trial Court erred in denying leave to amend?
2. Whether all indispensable parties have been joined, and if not, whether Defendants waived the right to do so?
3. Whether Plaintiffs lack standing despite their allegations that they suffered financial losses from Defen-dantsf] fraudulent actions?
4. Whether merger and waiver prevent cognizable claims despite Defendants’ fraud?
5. Whether Plaintiffs suffered cognizable harm?
6. Whether Defendants’ misrepresentation and breach of contract were material?
7. Whether Plaintiffs relied on Defendants’ misrepresentations?
8. Whether there is a legal distinction between fraud and intentional misrepresentation?
9. Whether Defendants’ conduct was so outrageous so [sic] as to support punitive damages?

Brief for Appellant at 4.

¶ 6 Before proceeding to the merits of the Schwarzwaelders’ claims, we pause to note the endemic shortcomings of their brief. Regrettably, the brief as a whole, at 52 pages long, is needlessly prolix. In addition, the arguments posed offer only limited reference to apposite authority and are sometimes contentious, focusing not on demonstrating the adequacy of Plaintiffs’ complaint but on contradicting the trial judge. This shortcoming translates directly into the excessive number of questions [618]*618posed by the Statement of Questions Involved, which despite its length, fails to identify salient issues for resolution by this Court and dwells instead on isolated legal questions ancillary to the content of the Complaint. Most significantly, the Statement and supporting argument fail to correspond, making review of this very lengthy document much more difficult than it should have been. Although we do not find the briefs shortcomings sufficient to invoke the penalty of dismissal, see Pa. R.A.P. 2101, we shall limit our review to only those matters raised that are directly material to the adequacy of the Complaint and the trial court’s exercise of discretion in denying the Plaintiffs’ request to amend.

¶ 7 The Schwarzwaelders’ appeal arises from entry of an order granting preliminary objections in the nature of a demurrer.

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Bluebook (online)
895 A.2d 614, 2006 Pa. Super. 61, 2006 Pa. Super. LEXIS 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwarzwaelder-v-fox-pasuperct-2006.