Arbiv, M. v. Evron, Y. ( 2021 )

J-A23016-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MOSHE ARBIV, ZURIEL NAGAR AND : IN THE SUPERIOR COURT OF
DAVID LACKNER : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 340 EDA 2020
YEHUDA EVRON, DIANE HART, PAUL :
PINSKI, ABILO COSTERIA, CARMINE :
FAZZOLARI, KENNETH HOLLAND :
AND SEAN P. MAYS, ESQUIRE :
Appeal from the Judgment Entered December 16, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 180300011
BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED JULY 07, 2021
Appellants Moshe Arbiv, Zuriel Nagar, and David Lackner (Buyers)
appeal from the judgment entered in favor of Appellees Yehuda Evron, Diane
Hart, Paul Pinski, Abilo Costeria, Carmine Fazzolari, and Kenneth Holland
(Sellers), following a bench trial.1 Buyers raise several challenges to the trial
court’s interpretation of the commercial real estate agreement at issue. For
the reasons that follow, we vacate the judgment and remand for further
proceedings.
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* Retired Senior Judge assigned to the Superior Court.
1 By agreement of the parties, Sean P. Mays, Esquire, was dismissed from the
suit and therefore is not a party to this appeal.
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We adopt the facts and procedural history set forth in the trial court’s
opinion. See Trial Ct. Op., 3/9/20, at 1-6. Briefly, this case involves a breach
of a commercial real estate purchase agreement and the application of an “as
is” addendum to the agreement. Id. at 1. Specifically, Buyers claimed they
properly declared the agreement void because of an incorrect zoning
classification. Am. Compl. at ¶ 19. As a result, Buyers requested return of
their deposit, and asserted Sellers breached the agreement by refusing to
return the deposit. Id. at ¶¶ 20, 22. We add that no broker was involved
and although the parties signed the agreement, ultimately no property
changed hands. Trial Ct. Op. at 3; see also Ex. A to Am. Compl. (titled
“Agreement for the Sale of Commercial Real Estate,” which has a handwritten
“X” through the section for listing the identities of any Pennsylvania licensed
broker participating in the transaction). We quote the relevant part of the “as
is” addendum below.2
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2 Although not discussed by the parties or the trial court, the agreement
provides that Buyers must exercise due diligence: “It is Buyer’s responsibility
to determine that the condition and permitted use of the property is
satisfactory within 0 days (30 if not specified) from the Execution Date to
conduct due diligence (Due Diligence Period), including verifying the . . .
zoning classifications . . . .” Ex. A. to Am. Compl. “Buyer may, prior to the
expiration of the Due Diligence Period, terminate this Agreement . . . .” Id.
Also attached to the complaint was an exhibit purporting to be a printout from
a government website listing the correct zoning classification for the property
at issue. Ex. C. to Am. Compl. No party explained why the agreement was
executed if the correct zoning designation was apparently publicly available.
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After a bench trial, on April 17, 2019, the trial court ruled in favor of
Sellers and against Buyers. On April 24, 2019, Buyers timely filed a post-trial
motion and an amended post-trial motion on April 26, 2019, which requested
judgment notwithstanding the verdict (JNOV). Buyers raised several issues
in their post-trial motion, but did not cite, discuss, or otherwise reference 21
P.S. § 613.1.3 It was in Buyers’ brief in support of their post-trial motion,
however, that Buyers first mentioned Section 613.1, and argued that Section
613.1 supported their claim for post-trial relief. Buyers’ Post-Trial Brief,
6/19/19, at 3-4, 11-13. On December 16, 2019, the trial court denied Buyers’
amended post-trial motion. Trial Ct. Op., 12/13/19.
Buyers timely appealed and timely filed a court-ordered Pa.R.A.P.
1925(b) statement. On March 9, 2020, the trial court filed a Rule 1925(a)
opinion, which asserted error and requested that this Court should reverse
and remand for entry of JNOV in favor of Buyers and against Sellers.
Buyers raise the following issues:
1. Whether this Court should remand this case to the [trial court]
to allow entry of an order consistent with the trial court’s
Pa.R.A.P. 1925(a) opinion dated March 9, 2020, in which the
trial court judge acknowledged that she had erred in finding in
favor of [Sellers] and should have granted [Buyers’] post-trial
motion and entered judgment notwithstanding the verdict in
favor of [Buyers].
2. Whether this Court should adopt the trial court’s reasoning in
its Rule 1925(a) opinion that the agreement and addendum
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3 Buyers did not raise Section 613.1 at trial.
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should be interpreted to permit the Buyers to declare the
agreement void for failure to state the correct zoning
classification for the property in paragraph 6 of the agreement.
3. Whether the [c]ourt erred, as a matter of law, in finding that
an “as is” addendum to the agreement of sale excused the
misstatement of [Sellers] of the zoning classification in
paragraph 6, which contains language mandated by statute 63
P.S. § 455.608(b) allowing the Buyer[s] to terminate the
agreement and receive back all deposit monies without the
requirement of further court action if the zoning classification
is not stated.
4. Whether the [c]ourt erred, as a matter of law, in refusing
rescission of the agreement and return of the deposit where
21 P.S. § 613.1 requires that, in cities of the first class, all
agreements for sale of real property contain the correct zoning
classification and conclusively presumes that the owners
represented and warranted that the zoning classification was
correct.
5. Whether the [c]ourt erred when it construed the “as is”
addendum to supersede and negate the express warranty as
to the zoning classification and remedy of rescission set forth
in Paragraph 6 of the agreement.
6. Whether the [c]ourt erred in finding in favor of [Sellers] based
upon the evidence at trial and applicable law.
Buyers’ Brief at 6 (some formatting altered).
Granting Relief Based Solely on the Trial Court’s Reasoning
In support of their first two issues, Buyers request that we adopt the
trial court’s reasoning in its Rule 1925(a) opinion and remand for further
proceedings. In support of their first issue, Buyers argue that this Court
should remand the case for the trial court to enter an order consistent with its
Rule 1925(a) opinion, in which the trial court asserted error in finding for
Sellers and against Buyers. Id. at 18. Buyers quote the trial court’s reasoning
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in its Rule 1925(a) opinion and argue that remand would promote judicial
efficiency by mooting the Buyers’ appeal. Id. at 20. Buyers claim that no
party would be prejudiced because, among other reasons, the damages at
issue are presently held in escrow. Id. at 20-21. For their second issue,
Buyers similarly argue that this Court should adopt the trial court’s reasoning
in its Rule 1925(a) opinion and reverse the trial court’s decision. Id. at 21.
Initially, we note that Appellant did not cite or discuss any legal
authorities permitting this Court to remand for entry of an order consistent
with the trial court’s Rule 1925(a) opinion. Nonetheless, it appears this Court
has the authority to remand for the trial court to enter an order reversing itself
and enter judgment in favor of Buyers, while retaining jurisdiction to resolve
the parties’ appeal. See Pa.R.A.P. 1701(a), (b)(5) (stating that after an
appeal has been taken, the trial court may no longer proceed, but may “[t]ake
any action directed or authorized by an appellate court”). However, under the
unique circumstances of this case, we conclude that remanding this matter for
the trial court to reverse itself and restart the appellate briefing process anew
for all of Buyers’ remaining issues would not “secure the just, speedy, and
inexpensive determination” of this appeal. See Pa.R.A.P. 105(a).
Pennsylvania Real Estate Licensing and Registration Act (RELRA)
Buyers’ third argument is that the “as is” addendum did not negate
Buyers’ right to void the real estate agreement under RELRA because the
agreement failed to state the correct zoning classification. Buyers’ Brief at
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22. In Buyers’ view, RELRA requires disclosure of the zoning classification.
Id. at 22-23. According to Buyers, Sellers’ failure to disclose the correct
zoning classification permitted Buyers to void the real estate contract. Id. at
23. In support, Buyers discuss Roddy, Inc. v. Thackray Crane Rental,
Inc., 2001 WL 1807953 (C.C.P. Phila. 2001), and Meyer v. Gwynedd Dev.
Grp., Inc., 756 A.2d 67 (Pa. Super. 2000). Id. at 24-25. Buyers reason that
although no brokers were involved in the instant transaction, “it is clear that
the legislature intended that the statutorily required language [of zoning
classification] be included in all agreements of sale of real property, not just
those transactions which involve” a broker. Id. at 27. Buyers conclude that
because the agreement did not disclose the “correct zoning classification” for
the property, Buyers had the right to void the agreement under RELRA
notwithstanding any “as is” addendum.4 Id. at 28.
We state the standard of review as follows:
Our appellate role in cases arising from non-jury trial verdicts is
to determine whether the findings of the trial court are supported
by competent evidence and whether the trial court committed
error in any application of the law. The findings of fact of the trial
judge must be given the same weight and effect on appeal as the
verdict of a jury. We consider the evidence in a light most
favorable to the verdict winner. We will reverse the trial court
only if its findings of fact are not supported by competent evidence
in the record or if its findings are premised on an error of law.
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4 Sellers counter that RELRA does not apply because no broker was involved.
Sellers’ Brief at 11.
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Amerikohl Mining Co. v. Peoples Nat. Gas Co., 860 A.2d 547, 549-50 (Pa.
Super. 2004) (citations omitted and formatting altered).
When reviewing an order resolving a post-trial motion for JNOV, our
standard of review is as follows:
An appellate court will reverse a trial court’s grant or denial of a
JNOV only when the appellate court finds an abuse of discretion
or an error of law. Our scope of review with respect to whether
[JNOV] is appropriate is plenary, as with any review of questions
of law.
In reviewing a motion for [JNOV], the evidence must be
considered in the light most favorable to the verdict winner, and
he must be given the benefit of every reasonable inference of fact
arising therefrom, and any conflict in the evidence must be
resolved in his favor. Moreover, a [JNOV] should only be entered
in a clear case and any doubts must be resolved in favor of the
verdict winner.
* * *
Questions of credibility and conflicts in the evidence are for the
fact-finder to resolve and the reviewing court should not reweigh
the evidence. If there is any basis upon which the [fact-finder]
could have properly made its award, the denial of the motion for
[JNOV] must be affirmed.
Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 890-91 (Pa. Super. 2011)
(per curiam) (citations omitted and formatting altered).
In Phelps v. Caperoon, 190 A.3d 1230 (Pa. Super. 2018), this Court
summarized the well-settled rules of statutory construction:
The Statutory Construction Act, 1 Pa.C.S. §§ 1901-1991, sets
forth principles of statutory construction to guide a court’s efforts
with respect to statutory interpretation. In so doing, however, the
Act expressly limits the use of its construction principles. The
purpose of statutory interpretation is to ascertain the General
Assembly’s intent and to give it effect. In discerning that intent,
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courts first look to the language of the statute itself. If the
language of the statute clearly and unambiguously sets forth the
legislative intent, it is the duty of the court to apply that intent
and not look beyond the statutory language to ascertain its
meaning. Courts may apply the rules of statutory construction
only when the statutory language is not explicit or is ambiguous.
We must read all sections of a statute together and in conjunction
with each other, construing them with reference to the entire
statute. When construing one section of a statute, courts must
read that section not by itself, but with reference to, and in light
of, the other sections. Statutory language must be read in
context, together and in conjunction with the remaining statutory
language.
Every statute shall be construed, if possible, to give effect to all
its provisions. We presume the legislature did not intend a result
that is absurd, impossible, or unreasonable, and that it intends
the entire statute to be effective and certain. When evaluating
the interplay of several statutory provisions, we recognize that
statutes that relate to the same class of persons are in pari
materia and should be construed together, if possible, as one
statute.
Also, when interpreting a statute we must listen attentively to
what the statute says, but also to what it does not say.
Phelps, 190 A.3d at 1236 (quoting Retina Assocs. of Greater Phila., Ltd.
v. Retinovitreous Assocs., Ltd., 176 A.3d 263, 270 (Pa. Super. 2017)
(alteration omitted)).
In relevant part, Section 455.302 of RELRA states:
No action or suit shall be instituted, nor recovery be had, in any
court of this Commonwealth by any person for compensation for
any act done or service rendered, the doing or rendering of which
is prohibited under the provisions of this act by a person other
than a licensed broker . . . unless such person was duly licensed
and registered hereunder as broker or salesperson at the time of
offering to perform any such act or service or procuring any
promise or contract for the payment of compensation for any such
contemplated act or service.
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63 P.S. § 455.302.
In Boland v. Mullen, 450 A.2d 749 (Pa. Super. 1982), this Court
construed the substantively identical clause in the statutory predecessor to
RELRA, which was known as the Real Estate Brokers License Act, 63 P.S. §§
431-448. Boland, 450 A.2d at 750. The Boland plaintiff, an unlicensed real
estate salesperson, referred a client to the defendant, a licensed real estate
broker, for the client’s purchase of a warehouse in exchange for a promise to
split the resulting commission. Id. The defendant did not split the
commission, and the plaintiff sued for breach of contract. Id. The case went
to trial, a jury found for the plaintiff, and the defendant appealed. Id.The Boland Court held that the plaintiff’s lawsuit was barred by the
following clause of the Real Estate Brokers License Act:
[N]o action or suit shall be instituted, nor recovery therein be had,
in any court of this Commonwealth by any person, copartnership,
association or corporation for compensation for any act done or
service rendered, the doing or rendering of which is prohibited
under the provisions of this act to others than licensed real estate
brokers, unless such person was duly licensed hereunder as real
estate broker at the time of doing such act or the rendering of
such service.[fn4]
Real Estate Brokers License Act of May 1, 1929, P.L.
[fn4]
1216, § 16, as amended, 63 P.S. § 446. A similar
prohibition is contained in Section 455.302 of the Real
Estate Licensing Act of February 19, 1980, P.L. 15, No. 9, §
302, 63 P.S. § 455.302.
Id. at 751 & n.4 (formatting altered).
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More recently, in Meyer, the appellant claimed that the trial court erred
by holding that he could not obtain relief because he was not licensed under
RELRA. Meyer, 756 A.2d at 68. The Meyer Court affirmed the trial court,
reasoning that because the appellant was not licensed under RELRA,
“Pennsylvania law clearly precludes any person from [recovery] if that person
was required to be licensed pursuant to the Act, and was not so licensed at
the time of the transaction[.]” Id. at 72.
Here, as Sellers and the trial court’s opinion denying post-trial relief
correctly noted, there is no evidence in the record that any broker, let alone
a licensed broker, was involved in the agreement at issue. See Trial Ct. Op.,
12/13/19, at 14. Buyers, similar to the plaintiffs in Meyer and Boland,
cannot invoke RELRA for relief because no licensed broker was involved in the
instant transaction. See Meyer, 756 A.2d at 72; Boland, 450 A.2d at 751 &
n.4. Because no licensed broker was involved, Buyers cannot file a lawsuit,
or otherwise recover, for any violation of RELRA. See 63 P.S. § 455.302; see
Meyer, 756 A.2d at 72; Boland, 450 A.2d at 751 & n.4. Therefore, even
assuming Sellers violated RELRA by not stating the “correct” zoning
classification, the plain and unambiguous statutory language of Section
455.302 states Buyers cannot sue under RELRA. See 63 P.S. § 455.302;
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Phelps, 190 A.3d at 1236. Therefore, Buyers have no right to void the
agreement under RELRA.5 See 63 P.S. § 455.302.
Requirement for Accurate Zoning Classification
We briefly summarize Buyers’ fourth argument, which is that 21 P.S. §
613.1 requires that an accurate zoning classification be stated in the
agreement of sale. Buyers’ Brief at 29-30.
In Trigg v. Children’s Hosp. of Pittsburgh of UPMC, 229 A.3d 260(Pa. 2020), our Supreme Court noted:
The issue of waiver presents a question of law, and, as such, our
standard of review is de novo and our scope of review is plenary.
As a general matter, it is axiomatic that issues not raised in lower
courts are waived for purposes of appellate review, and they
cannot be raised for the first time on appeal. This is because, as
our Court has oft reminded, issue preservation is foundational to
proper appellate review. Requiring issues to be properly raised
first in the trial court ensures that trial judges have the
opportunity to consider a potential appellate issue and correct any
error at the first available opportunity. It also promotes the
orderly and efficient use of judicial resources, ensures
fundamental fairness to the parties, and accounts for the expense
attendant to appellate litigation.
Trigg, 229 A.3d at 269 (citations omitted and formatting altered); see
generally Pa.R.C.P. 227.1; Pa.R.A.P. 302(a) (stating, issues “not raised in
the trial court are waived and cannot be raised for the first time on appeal”).
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5 It is unnecessary to address the impact of the “as is” addendum for Buyers’
third issue because Buyers have no recourse under RELRA. Buyers also cannot
rely on Roddy in support as trial court opinions are not binding precedence.
See Coleman v. Wyeth Pharma., Inc., 6 A.3d 502, 522 n.11 (Pa. Super.
2010) (holding trial court decisions, with few exceptions, are not binding on
this Court).
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Rule 227.1 provides:
(b) Except as otherwise provided by Pa.R.E. 103(a), post-trial
relief may not be granted unless the grounds therefor,
(1) if then available, were raised in pre-trial proceedings or by
motion, objection, point for charge, request for findings of fact
or conclusions of law, offer of proof or other appropriate
method at trial; and
(2) are specified in the motion. The motion shall state how the
grounds were asserted in pre-trial proceedings or at trial.
Grounds not specified are deemed waived unless leave is
granted upon cause shown to specify additional grounds.
Pa.R.C.P. 227.1(b).
For example, in Moure v. Raeuchle, 604 A.2d 1003 (Pa. 1992), our
Supreme Court held that the plaintiff waived the issue of negligence by not
raising it in her post-trial motion. Moure, 604 A.2d at 1007-08. More
recently, in Brown v. Halpern, 202 A.3d 687 (Pa. Super. 2019), appeal
denied, 217 A.3d 207 (Pa. 2019), and appeal denied, 217 A.3d 809 (Pa.
2019), this Court similarly held that the appellants waived certain issues for
appellate review because they raised those issues for the first time in a post-
trial motion, rather than at trial. Brown, 202 A.3d at 697. Finally, raising an
issue in a post-trial brief that was not raised in the post-trial motion does not
preserve the issue for appellate review. See Siculietano v. K & B
Amusements Corp., 915 A.2d 130, 132 n.2 (Pa. Super. 2006).
Here, Buyers never raised 21 P.S. § 613.1 at trial. We agree with the
trial court that “Buyers waived this issue because they did not raise that
statute at trial.” See Trial Ct. Op., 12/13/19, at 7; Pa.R.C.P. 227.1(b)(1);
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Trigg, 229 A.3d at 269. Further, Buyers did not raise Section 613.1 in their
post-trial motion, which also results in waiver. See Moure, 604 A.2d at 1007-
08; Brown, 202 A.3d at 697. Finally, Buyers’ discussion of Section 613.1 in
their brief in support of their post-trial motion also did not preserve their claim
for appellate review, particularly since they never raised Section 613.1 at trial.
See Pa.R.C.P. 227.1; Siculietano, 915 A.2d at 132 n.2. For these reasons,
Buyers waived the issue for appellate review. See Pa.R.A.P. 302(a).
The “As Is” Addendum
Before summarizing Buyers’ fifth argument, we quote the relevant part
of the “as is” clause in the addendum:
Seller is selling and the Buyer is buying the property in an “AS
IS” CONDITION WITHOUT REPRESENTATIONS OR
WARRANTIES OF ANY KIND OR NATURE.[]
It is understood and agreed that the Property is being purchased
in its “as is” condition. The Seller . . . make[s] no representations,
warranties or guarantees of any kind whatsoever including, but
not limited to: . . . zoning . . . . Buyer agrees to indemnify and
hold harmless Seller . . . . Furthermore, Seller is not responsible
for nor obligated to provide or perform any certifications and
inspections. . . .
In the event any provision of this Addendum conflicts in whole or
in part with the terms contained in the main body of the
Agreement . . . the provisions of this Addendum shall control and
the conflicting terms in the Agreement are hereby considered
deleted and expressly waived by both Buyer and Seller.
Ex. A to Am. Compl. (emphasis in original). The entire addendum was
executed contemporaneously with the agreement at issue. Id.- 13 -
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Buyers claim that the “as is” clause in the addendum does not supersede
or negate “the express warranty of the zoning classification” and Buyers’ right
to rescind the agreement. Buyers’ Brief at 31. Buyers assert that they were
“entitled to reply upon” Sellers’ representation of the zoning classification. Id.
at 32. In Buyers’ view, it was only because of Sellers’ representation that
Buyers agreed to the “as is” addendum and waived “the right to further
investigation” of the zoning classification. Id. Buyers maintain that the “as
is” addendum “did not negate the explicit representation of the zoning
classification” and “Buyers were entitled to rely upon it.” Id. at 33. In
support, Buyers rely on Juniata Valley Bank v. Martin Oil Co., 736 A.2d
650 (Pa. Super. 1999). Id. at 34.
Here, in concluding that the “as is” clause voided the agreement, the
trial court reasoned as follows:
Paragraph 6 did, in fact, state that the zoning classification was
“W80 Apartment.” The clear language of the [“as is” clause],
however, stated that Sellers were not making any representations
or warranties of any kind or nature regarding zoning. Crucially,
the conflicting zoning term in Paragraph 6 was “hereby considered
deleted and expressly waived by both Buyer and Seller.” Although
the “W80 Apartment” classification was deemed deleted by the
[“as is” clause], the remaining text of Paragraph 6 remained in full
force and effect. The end result of the [“as is” clause] was to
remove the zoning classification in Paragraph 6, which triggered
the voidable nature of the contract because of the “[f]ailure of this
Agreement to contain the zoning classification.”
Trial Ct. Op., 3/9/20, at 7. In sum, the trial court held that because the “as
is” clause “deleted” a required term in the agreement, the entire agreement
was voidable. Id.
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Our review of the record confirms that although the trial court initially
denied Buyers’ post-trial motion, the trial court issued a Rule 1925(a) opinion
concluding that Buyers were entitled to relief. See id. Therefore, Sellers did
not have an opportunity to challenge the trial court’s reasoning before Buyers
appealed. Cf. DiGregorio v. Keystone Health Plan E., 840 A.2d 361, 367
(Pa. Super. 2003) (holding that if trial court’s order was construed as a grant
of an oral motion for summary judgment, the appellant did not waive its
arguments when it was not given opportunity to file a responsive brief in
opposition). Therefore, under the circumstances of this case, and to ensure
that the parties have the opportunity to properly raise and preserve any
arguments for appellate review, we vacate the judgment and order the trial
court to issue a new decision limited to the issue of whether the “as is” clause
“deleted” a required term in the agreement, rendering the entire agreement
voidable. See 42 Pa.C.S. § 706 (stating that “[a]n appellate court may affirm,
modify, vacate, set aside or reverse any order brought before it for review,
and may remand the matter and direct the entry of such appropriate order,
or require such further proceedings to be had as may be just under the
circumstances”). On remand, the parties may then file post-trial motions and
appeal, if necessary.6
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6 In sum, although we vacate the judgment, we agree with the trial court’s
disposition of Buyers’ RELRA and Section 613.1 claims presented in their
appellate issues, one through four. Further, because of our disposition of
(Footnote Continued Next Page)
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Judgment vacated. Case and record remanded for further proceedings
as set forth above. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2021
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Buyers’ fifth issue, we need not address their sixth issue, which was that the
trial court erred in finding for Sellers.
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