Nicholas, K. v. McDonald, C.

J-A28018-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KATHLEEN NICHOLAS-GOULD : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES P. MCDONALD, JR. AND :
SUSANNE MCDONALD :
: No. 1009 EDA 2022
Appellants :
Appeal from the Judgment Entered March 14, 2022
In the Court of Common Pleas of Bucks County Civil Division at No(s):
2018-06816
BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 7, 2023
Charles P. McDonald, Jr., and Susanne McDonald (h/w) (collectively, the
McDonalds/Sellers) appeal from the judgment, entered on the non-jury
verdict in the Court of Common Pleas of Bucks County, in favor of Appellee
Kathleen Nicholas-Gould (Buyer) in the amount of $69,459.30, in this
residential real estate case. After careful review, we affirm on the basis of the
opinions authored by the Honorable Robert O. Baldi.
On March 11, 2018, the parties executed an agreement of sale, in the
amount of $480,000.00, for property (Property) located at 3912 Street Road1
in Buckingham Township, Bucks County. Sellers had purchased the Property
in November 2005 and made extensive improvements to it, including
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1 The home was approximately 50 years old at the time of the sale.
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removing a lower portion of the wall in the corner bedroom in 2013, as well
as converting the garage into a family room in or around 2007.
On February 22, 2018, Sellers executed a Real Estate Disclosure
Statement (Disclosure Statement) that included, among other things, the
following averments:
• Sellers “were not aware of any past or present movement,
shifting, deterioration, or other problems with walls,
foundations, or other structural components[;]”
• Sellers “were not aware of any past of present problems
with driveways, walkways, patios, or retaining walls on the
property[;]”
• Sellers “were not aware of any past or present water
infiltration in the house or other structures, other than the
roof, basement[,] or crawl spaces.”
Seller’s Property Disclosure Statement, 2/22/18, at ¶¶ 7(A), (B), & (C). On
March 11, 2018, Buyer reviewed the Disclosure Statement and testified that
based on the Disclosure Statement she believed that there were no structural
problems with the Property. N.T. Non-Jury Trial, 10/6/20, at 34. Finally,
Buyer testified that she relied upon the representations in the Disclosure
Statement when she decided to purchase the Property. Id. at 32.
Buyer hired a company to inspect the Property prior to closing. The
inspector issued a report, dated March 16, 2018, listing items in/on the
Property that needed corrective work. In particular, the inspection report
noted that there were material defects with regard to the roof drainage system
(a defective rain gutter/downspout) and the chimney (placement of right roof
framing member). See Inspection Report by Steve Maurer of Maurer
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Inspections, LLC, 3/16/18, at 4.2 The inspection report also noted that
everything “appeared functional” in the interior of the Property, except for
certain steps, stairways, balconies, and railings, which Mr. McDonald
subsequently fixed. The remaining problem items were either addressed or
waived by the parties prior to settlement.3
The parties made settlement on the Property on April 30, 2018.4
Following settlement, Buyer “discovered that the Property was riddled with
numerous undisclosed material defects that were neither readily observable
nor discoverable by [Buyer’s] inspector,” including, but not limited to, a
deteriorated and failing front wall on the main level, basement and crawlspace
flooding, cracked floor tiles in the family room, deteriorating masonry on the
outside front of the home, and a failing split-rail backyard fence. Complaint,
11/26/18, at ¶¶ 23-45. In particular, Buyer discovered that the front wall of
one of the bedrooms was bulging and that water was seeping through the
paint. When Buyer cut open a portion of that wall, she found that the studs
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2 The inspection report also noted that further evaluation by a qualified
chimney sweep was required to assess the condition of the chimney’s flues
and vents as the interior chimney and furnace flues could not be inspected
because that was “beyond the scope of a home inspector.” Id.
3A $3,500.00 adjustment in favor of Buyer was applied to the final purchase
price of the Property to account for the cost to repair some of the problems
noted in the inspection report.
4 The parties stipulated that the closing date of the sale was April 30, 2018.
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were so deteriorated from water damage that new studs had been “sistered”5
to the old studs to prevent the wall from completely falling down. In addition,
Buyer noticed that pieces of wood and insulation inside the wall were moist
and contained dark spots/mold, that the drywall or plasterboard was
destroyed, and that the masonry was crumbling.
On November 26, 2018, Buyer filed a complaint against Sellers alleging
violations of the Real Estate Seller Disclosure Act (RESDL)6 and the Unfair
Trade Practices and Consumer Protection Act (UTPCPL).7 In her complaint,
Buyer requested treble damages, as well as attorneys’ fees and costs. Sellers
filed an answer, new matter, and counterclaim asserting breach of contract.8
Following a three-day non-jury trial, held in October 2020,9 Judge Baldi
found in favor of Buyer, concluding that Sellers’ failure to disclose material
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5 “A sister stud is a secondary stud that is installed alongside an existing stud.
It is usually used to reinforce a stud that has been damaged or is bowed in a
manner that compromises its load-bearing capacity.”
https://knowledgeburrow.com/what-does-sistering-mean-in-
construction/#:~:text=What%20does%20Sistering%20mean%20in%20con
struction%3F%20A%20sister,in%20a%20manner%20that%20compromises
%20its%20load-bearing%20capacity. (last visited 12/28/23).
6 68 Pa.C.S.A. §§ 7301-14.
7 73 P.S. § 201-1, et seq.
8 The parties jointly stipulated to the following: Buyer will withdraw a claim
for negligence and Sellers will withdraw their counterclaims for loss of the
bargain and for attorneys’ fees.
9On the second day of trial, Mrs. McDonald testified that she adopted her
husband’s testimony as her own. N.T. Non-Jury Trial, 10/7/20, at 99.
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defects—specifically, moisture damage and deterioration of the front wall of
the Property that extended from a corner bedroom to the family room—
constituted a violation of the RESDL and the UTPCPL.10 The trial judge
awarded Buyer $50,940.00 in compensatory damages11 to cover the costs to
repair the deteriorating walls.
On July 20, 2021, Sellers filed a post-trial motion, which the court
subsequently denied. Buyer filed a post-trial petition seeking attorneys’ fees
and costs under the UTPCPL;12 Sellers filed an answer opposing the petition.
On March 7, 2022, the trial court granted Buyer’s petition, awarding Buyer
$14,838.50 in attorneys’ fees and $3,680.80 in costs. See 73 P.S. § 201.9.2
(statute authorizing recovery of “reasonable” attorneys’ fees and costs for
violation of UTPCPL).
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10 The court specifically found that Sellers reasonably believed that their
installation of a second sump pump corrected any significant flooding issues
in the Property’s basement and crawl space and, thus, Buyer could not recover
for Sellers’ alleged failure to disclose this issue. The court also found that
Buyer could not recover for alleged flooding in the yard of the Property where
no evidence was presented at trial to show that the flooding had a significant
impact on the value of the Property or that it involved an unreasonable risk to
people on the Property. Finally, the court found that Buyer could not recover
on the failing split-rail fence or deteriorating masonry on the front of the
home. See Trial Court Opinion, 7/1/21, at 21.
11Although permissible under the UTPCPL, the court declined to award treble
damages.
12 The parties stipulated that any request that Buyers may have for attorneys’
fees under the UTPCPL would be heard via post-trial motions without the need
for expert testimony as it relates to the reasonableness of attorney rates.
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Sellers filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Sellers present
the following issues for our consideration:
(1) Whether the [trial c]ourt improperly relied on testimony that
the parties and the [trial c]ourt stipulated could not be used
to establish liability[.13]
(2) Whether there was sufficient competent evidence
introduced at trial that the [Sellers] were aware of any
material defects in the front bedroom wall[.]
(3) Whether there was sufficient competent evidence that the
[Sellers’] statement that they were not aware of any
material defects in the front bedroom wall were false,
deceptive, and misleading[.]
(4) Whether there was sufficient competent evidence to support
actual damages in the amount of $50,940.00[.]
(5) Whether the [trial c]ourt erred in applying the UTPCPL to
this case because the [Sellers] are individual consumers
that were [not] and are not in the business of selling homes.
Appellants’ Brief, at 7.
Upon appeal of a non-jury trial verdict, an appellate court
considers the evidence in a light most favorable to the verdict
winner and will reverse the trial court only if its findings of fact
lack the support of competent evidence or its findings are
premised on an error of law. When an appellate 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. The court's findings are
especially binding on appeal, where they are based upon the
credibility of the witnesses, unless it appears that the court abused
its discretion or that the court’s findings lack evidentiary support
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13Sellers did not preserve this issue in post-trial motions. Thus, it is waived
on appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are
waived.”).
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or that the court capriciously disbelieved the evidence. It is
inappropriate for an appellate court to make factual
determinations in the face of conflicting evidence.
Phelps v. Caperoon, 190 A.3d 1230, 1243 (Pa. Super. 2018) (citation
omitted).
With regard to issues two and four, Buyer’s expert witness concluded
that water infiltration, not termites as alleged by Sellers, was the cause of
damage to the Property’s walls and that the way to remedy the damage was
to reframe the walls and entirely replace the masonry. See N.T. 10/7/20, at
12-15, id., 10/6/20, at 221-22 (expert testifying sill plate, joists of house,
and studding in front walls were “rotted”); id. at 22-23 (expert testifying no
vapor barrier in front walls to keep moisture from seeping through exterior
stone). Buyer’s contractor testified that a “reasonable and appropriate” cost
to reframe the front walls would be $50,940.00 ($15,260.00 (bedrooms walls)
and $35,680.00 (family room/garage wall)). Id., 10/7/20, at 20-21; see
Plaintiff’s Exhibit 15, at 1-2.
With regard to issue number three, Mr. McDonald admitted at trial that,
in 2013, he opened up the front wall to replace the lower portion of drywall
and, in the process, “sistered” new studs to the old studs. Id., 10/7/20 at
67-68; id. at 85 (Seller testifying inside corner bedroom wall, “There was a
stud that was a little chewed up[.]”). Mr. McDonald also testified that the
drywall inside the wall was “cracked and falling down.” Id., 10/8/20, at 72-
73. Finally, Mr. McDonald testified that when the Property’s garage was
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converted to a family room, he observed the week-long construction process
“about three or four times.” Id., 10/7/20, at 78.
With regard to Sellers’ final issue, we note that the UTPCPL provides for
a private cause of action.
The UTPCPL is Pennsylvania’s consumer protection law, which
serves the purpose of protecting the public from unfair or
deceptive business practices. DeArmitt [v. N.Y. Life Ins. Co.,
73 A.3d 578, 587 (Pa. Super. 2013)]. The UTPCPL explicitly
authorizes a private cause of action for anyone who purchases
goods primarily for personal, family, or household purposes and
“suffers any ascertainable loss of money or property” as a result
of any person employing an unlawful method, act, or practice. 73
P.S. §201-9.2(a).
In order to bring a private cause of action under the UTPCPL, “a
plaintiff must show that he justifiably relied on the defendant’s
wrongful conduct or representation and that he suffered harm as
a result of that reliance.” Yocca v. Pittsburgh Steelers Sports,
Inc., [] 854 A.2d 425, 438 (Pa. 2004) (emphasis added). Strict
technical privity is not required to bring a cause of action under
the UTPCPL. Valley Forge Towers Smith Condominium v.
Ron-Ike Foam Insulators, Inc., [] 574 A.2d 641, 647 (Pa.
Super. 1990).
Zajick v. Cutler Grp., Inc., 169 A.3d 677, 680 (Pa. Super. 2017).14
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14 Specifically, section 201-3 of the UTPCPL creates a private cause of action
in the following circumstances:
(a) Any person who purchases or leases goods or services
primarily for personal, family or household purposes
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. The
court may, in its discretion, award up to three times the
(Footnote Continued Next Page)
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After examining the parties’ briefs, the issues on appeal, and relevant
statutory and case law, we affirm the court’s judgment. In doing so, we rely
upon the thorough and well-written opinions authored by Judge Baldi. See
Pa.R.A.P. 1925(a) Opinion, 6/10/22, at 5-10; Trial Court Opinion, 7/1/21.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/2023
____________________________________________
actual damages sustained, but not less than one hundred
dollars ($ 100), and may provide such additional relief as it
deems necessary or proper. The court may award to the
plaintiff, in addition to other relief provided in this
section, costs and reasonable attorney fees.
73 P.S. § 201-9.2(a) (emphasis added). Under section 3 of the UTPCPL
“unlawful acts or practices” are defined as “unfair methods of competition and
unfair or deceptive acts of practices in the context of any trade or commerce
as defined by subclauses (i) through (xxi) of clause (4) of section 2 of this act
and regulations promulgated under section 3.1 of this act[.]” Id. at § 201-3.
The UTPCPL prohibits “engaging in any other fraudulent or deceptive conduct
which creates a likelihood of confusion or misunderstanding.” Id. at 201-
2(4)(xxi). See Gregg v. Ameriprise Fin., Inc., 245 A.3d 637 (Pa. 2021)
(UTPCPL’s 1997 amendment created “catch all” provision that expanded its
scope to cover not just “fraudulent” but also “deceptive” conduct; statute
requires neither intent to deceive nor negligence with regard to effect of
misrepresentation).
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IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CIVIL ACTION — LAW
KATHLEEN NICHOLS-GOULD
Plaintiff,
Vs. : No. 2018-06816
CHARLES and SUSANNE MCDONALD (h/w) :
Defendants. :
OPINION
I. INTRODUCTION
Charles and Susanne McDonald (hereinafter, “Appellants”! filed a Notice of Appeal from
this Court’s Decision and Order, dated July 1, 2021, in which the undersigned found in favor of
Kathleen Nichols-Gould (hereinafter, “Appellee’’) and against Appellants after a three-day nonjury
trial before the undersigned. This Court’s Opinion is being filed as required by Pennsylvania Rule
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of Appellate Procedure 1925(a) and in compliance therewith. For the reasons stated below, the
undersigned respectfully suggests the instant Appeal should be denied.
II. FACTUAL AND PROCEDURAL BACKGROUND
Appellants purchased the property located at 3912 Street Road in Buckingham Township,
Bucks County, Pennsylvania (hereinafter, “the Property”) in October 2005. Notes of Testimony
(“N.T.”) 10/6/2020, 31:20-22; 160:13-15; N.T. 10/8/2020, 15:15-17; P-1 § 2(C); D-25 J 2(C)?
Appellants spent thousands of dollars renovating the Property during their ownership, making
extensive improvements, some of which altered or changed the structural integrity of the house.
N.T. 10/7/2020, 42:1-21; 43:14 — 44:9; N.T. 10/8/2020, 53:13-18; P-1 J 8; D-25 § 8. Among the
repairs performed by Appellants was the removal of the lower portion of the wall in the corner
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' Mrs. McDonald adopted the testimony of Mr. McDonald at trial. N.T. 10/7/2020, 99:16-18.
? p- refers to Plaintiff's Trial Exhibits and D- refers to Defendants’ Trial vane
:B. HtIt 8 the responsibili
ponsibility of
all Bartles to
partiés of the notify all rested
content of thi
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$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of ,
bedroom in 2013. N.T. 10/7/2020, 67:11-25; 68:1-19; 87:1-20. Appellants admitted that they
noticed deterioration of the studs and gypsum board inside the wall at that time. N.T. 10/7/2020,
67:11-25; 68:1-19; 87:1-20.
Appellee offered to purchase Appellants’ home for $480,000.00 after they listed it for sale
in 2018. N.T. 10/6/2020, 39:14-15; N.T. 10/7/2020, 40:15 — 41:6; N.T. 10/8/2020, 70:23 — 71:3;
P-2. As part of the parties’ real estate transaction, Appellants prepared a Real Estate Seller’s
Disclosure Statement (“Disclosure Statement”). N.T. 10/6/2020, 31:11-16; P-1; D-25. In
Paragraph 7 of the Disclosure Statement, Appellants indicated that they “were not aware of any
past or present movement, shifting, deterioration, or other problems with walls, foundations, or
other structural components .. . ” P-1 § 7(A)-(C); D-25 § 7(A)-(C).
After settlement, Appellee noticed several significant problems with the Property,
including a deteriorated and failing front wall on the main level. N.T. 10/6/2020, 70:5 — 89:6; P-9
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to P-11. In light of the issues that Appellee observed on the Property, and the repairs that were
necessary to correct those issues, Appellee filed a Complaint against Appellants alleging violations
of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) and the
Pennsylvania Real Estate Sellers’ Disclosure Law (“RESDL”)‘.
Subsequently, a three-day bench trial was held before the undersigned from October 6,
2020, through October 8, 2020, after which time the undersigned issued a Memorandum Decision
and Order finding in favor of Appellee and against Appellants on Appellee’s claims. The Court’s
25-page Decision was issued July 1, 2021. It contained 61 Findings of Fact, a substantial number
of which were stipulated to by the parties. The Decision outlines and explains the Court’s
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373 PS. §§ 201-1 et seg.
4 68 Pa.C.S. §§ 7311 et seq.
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$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
reasoning for the award that was entered. The parties stipulated at trial that fee petitions would be
presented via post-trial submissions. N.T. 10/7/2020, 8:6-12. On March 7, 2022, the undersigned
issued a Memorandum Decision and Order awarding $14,838.50 in attorney’s fees and $3,680.80
in costs to Appellee. Appellants filed their Notice of Appeal on April 12, 2022, and this Court
directed Appellants to file a Statement of Matters Complained of On Appeal on April 13, 2022.
Il. STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
On May 4, 2022, Appellants filed their Concise Statement of Matters Complained of On
Appeal, which are set forth verbatim below:
1. The Court erred in finding that Plaintiff proved by preponderance of the evidence that
Defendants failed to properly disclose the condition of the front walls.
To the extent the Court found that Defendants were aware of and failed to disclose
moisture in the front walls, the Court erred in finding that Plaintiff proved by a
preponderance of the evidence that the alleged moisture in the front walls predated the
closing and that Defendants were aware of the alleged moisture or alleged condition of
the walls.
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The Court erred in finding that “Based on Mr. McDonald’s replacement of the drywall
in the corner bedroom, these statements were either false, deceptive, or misleading.”
The Court erred by awarding $50,940.00 for the front walls. That figure improperly
included many components that were never present at the property while Defendants
owned it, as well as components that were not damaged/deteriorated when Plaintiff
took ownership. By way of example only, inter alia, the figure improperly included a
new ceiling, even though there was no evidence of any problems with the ceiling; it
improperly included new walls that are not part of the front walls; it improperly
included the installation of a new heating system; it improperly included a “rebuild [of]
electric panel closet;” it improperly included the cost to raise the wall above grade. By
way of further example on, inter alia, although this Court properly found that “The
Plaintiff has not proven the deteriorated masonry on the front of the house is a material
defect for which she can recover,” this Court nonetheless improperly awarded Plaintiff
the costs to remove and replace (with siding) the masonry wall. In short, the Court
improperly found that Defendants were responsible to provide Plaintiff with a home
that is substantially newer and substantially improved over the 50-year-old home that
Defendants’ owned, offered for sale and sold to Plaintiff.
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5. The Court erred in awarding Plaintiff attorney fees and costs.
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$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
6. The Court erred in awarding Plaintiff $14,838.50 in fees and $3,680.00 in costs. To the
extent Plaintiff was entitled to any fees or costs, the amounts awarded by the Court are
excessive, not supported by the evidence and not supported by the law.
7. The Court erred in applying the Unfair Trade Practices and Consumer Protection Law
(UTPCPL) to this case because Defendants are individuals that were and are not in the
business of selling homes. Defendants were and are not “vendors” or in the business of
selling anything. Defendants are not in the business of dealing with other consumers.
Indeed, Defendants are typical consumers who were selling their residence like average
people do every day.
8. Even if the UTPCPL is applicable, this Court erred in holding that Defendants violated
the UTPCPL.
9. Evenifthe UTPCPL is applicable, this Court erred in holding that Defendants engaged
in fraudulent and deceptive conduct.
10. Even if the UTPCPL is applicable, this Court erred in holding that Plaintiff may recover
up to three times actual damages.
11. This Court erred in holding that Defendants violated the Real Estate Seller Disclosure
Law.
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IV. DISCUSSION
For ease of discussion, this Court will consolidate and address Appellants’ arguments
pertaining to Appellants’ knowledge of the moisture damage in the front walls first, followed by
the amount of Appellee’s award, and then by the application of the UTPCPL. The Court will
conclude with a discussion of the application of the RESDL.
A. Standard of Review
The Court, sitting as finder of fact in a nonjury trial, “is permitted to accept all, part, or
none of the testimony, and [has the] exclusive province to resolve conflicts in that testimony.”
Haan v. Wells, 103 A.3d 60, 72 (Pa. Super. 2014). As the Pennsylvania Superior Court has stated,
“(the appellate court’s] role in cases arising from non-jury trial
verdicts is to determine whether the findings of the trial court are
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supported by competent evidence and whether the trial court
committed error in any application of the law. The findings of the
trial judge in a non-jury case must be given the same weight and
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$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
effect on appeal as the verdict of a jury, and the findings will not be
disturbed on appeal unless predicated upon errors of law or
unsupported by competent evidence in the record. Furthermore, [the
appellate court’s] standard of review demands that [the court]
consider the evidence in a light most favorable to the verdict winner.
Levitt v. Patrick, 976 A.2d 581, 588-89 (Pa. Super. 2009) (citing Baney v. Eoute, 784 A.2d 132,
135 (Pa. Super. 2001)). Moreover, “[the] award [of] attorneys' fees and costs incurred in bringing
an action are within the discretion of the trial court, and [appellate courts] will not reverse a trial
court's decision on the matter in the absence of an abuse of discretion.” First Pennsylvania v.
National Union, 580 A.2d 799, 803 (Pa. Super. 1990).
B. Appellants’ Knowledge of Moisture Damage in the Front Walls
The Court determined that Appellants were aware of the moisture damage and deterioration
in the front walls when filling out the Disclosure Statement in 2018, yet failed to disclose same,
because Appellants admitted that they opened the wall in the corner bedroom in 2013 and noticed
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deterioration of the studs and gypsum board at that time. N.T. 10/7/2020, 67:11-25; 68:1-19; 87:1-
20. Appellants admitted that the inside of the wall in the corner bedroom appeared similar in 2013
to what Appellee observed in 2018 when she re-opened the same wall. N.T. 10/8/2020, 72:22-25;
73:1-3. This was specifically discussed in the Court’s written Decision entered July 1, 2021, a
copy of which is attached hereto as Exhibit “A” and incorporated herein by reference.
While Appellants attributed the deterioration that they observed solely to termite damage
or age, the experts who presented testimony at trial regarding the corner bedroom all agreed that
there was moisture damage in the walls, including Appellants’ own expert, Herbert Scott. N.T.
10/6/2020, 221:19-25; N.T. 10/7/2020, 22:9-23; 68:7-16; 158:20-25; 159:1. Indeed, Mr. Scott
testified that moisture damage likely preceded any termite damage as termites need moisture to
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survive. N.T. 10/7/2020, 161:3-8; 175:18-24.
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Appellee’s expert, Michael Lohman, testified that the interior of the walls in the corner
bedroom had already begun to rot and become covered in mold when Appellants opened the wall
in 2013. N.T. 10/7/2020, 36:1-4. Mr. Lohman further testified that “[a]nyone can look at black
mold and see that it is obviously black mold” and that “anyone that had general common sense . .
. would [have] remove[d] any of the rotted wood that had mold on it” rather than sistering the studs
and sealing off the wall. N.T. 10/7/2020, 37:2-14.
This Court found that Mr. Lohman’s testimony that the moisture damage and deterioration
in the corner bedroom wall was obvious to Appellants in 2013 was credible, and that Appellants’
testimony to the contrary was implausible. Accordingly, Appellants’ failure to disclose the
moisture damage and deterioration in the corner bedroom wall on the Disclosure Sheet that they
prepared and presented to Appellee in 2018 was false, deceptive, and misleading, and in violation
of the UTPCPL and RESDL, as discussed in Sections IV(D) and IV(E) below.
Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
C. Amount of Appellee’s Award
The Court, sitting as finder of fact in this nonjury trial, accepted the testimony of Appellee’s
witness, Thomas Gavin, that there was deterioration on the interior of front walls, including rotting
studs, moist insulation, and deteriorating gypsum board, which had a significant adverse impact
on the value of the Property, evidenced by the cost of replacing such walls. Mr. Lohman confirmed
the reasonableness of the cost of the repairs performed by Mr. Gavin at trial. N.T. 10/7/2020, 20:13
— 21:12. The Court’s award of $50,940.00 for the repairs that were necessary were based upon Mr.
Gavin’s repair estimates. This was also explained in the Court’s Decision, a copy of which is
attached hereto.
The Court accepted the witnesses’ testimony and did not award all costs listed in the
E-Filed by: Elizabeth Schecter
Estimate, but rather focused on line items. It should be noted that the Court had the discretion to
the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents. 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 7
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
triple the damages but chose not to do so. Any argument, or suggestion that a lesser amount of
damages should have been awarded can at best be characterized as “ungrateful”. Appellants failed
to disclose damage in the walls. The award entered is remedial and should cover all of Appellee’s
costs associated with Appellants’ wrongdoing. Under the law, to ensure that all reasonable costs
are awarded, the Court is authorized to issue three times the amount of the damage. The award
could have been $150,000.00.
Reasonable attorneys’ fees are recoverable for actions brought under the UTPCPL. See
Boehm v. Riversource Life Ins. Co., 117 A.3d 308, 335 (Pa. Super. 2015); 73 P.S. § 201-9.2(a).
In determining an appropriate attorneys’ fee award, courts are instructed to consider:
“(1) [t]he time and labor required, the novelty and difficulty of the
questions involved and the skill requisite properly to conduct the
case; (2) [t]he customary charges of the members of the bar for
similar services; (3) [t]he amount involved in the controversy and
the benefits resulting to the clients from the services; and (4) [t]he
Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
contingency or certainty of the compensation.”
Boehm, 117 A.3d at 335 (citations omitted). Moreover, “there should be ‘a sense of proportionality
between an award of damages [under the UTPCPL] and an award of attorney's fees,’ and whether
plaintiff has pursued other theories of recovery in addition to a UTPCPL claim ‘should [be] given
consideration’ in arriving at an appropriate award of fees.” Id. (citing Neal v. Bavarian Motors,
882 A.2d 1022, 1031 (Pa. Super. 2005)). Other costs incurred by UTPCPL claimants are also
recoverable under the plain language of the statute. Fazio v. Guardian Life Ins. Co. of Am., 62
A.3d 396, 402 (Pa. Super. 2012) (citing 73 P.S. § 201-9.2(a)).
As discussed in Section IV(D) below, the UTPCPL applies to Appellants’ conduct in this
case. The undersigned issued a detailed Memorandum Decision and Order laying out its reasoning
E-Filed by: Elizabeth Schecter
for the award of Appellee’s attorney’s fees and costs on March 7, 2022, a copy of which is attached
hereto as Exhibit “B”. Appellants failed to articulate any support for their contention that the
the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents. 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 8
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
amount awarded to Appellee in that Order was excessive, not supported by the evidence and not
supported by the law. Therefore, it is respectfully submitted that the amount of fees awarded by
the undersigned to Appellee was not an abuse of discretion and should be upheld on appeal.
D. Application of the VTPCPL
The UTPCPL provides:
“[a]ny person who purchases or leases goods or services primarily
for personal, family or household purposes 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(a). Among the unfair or deceptive acts or practices enumerated in the UTPCPL
is a catchall provision which prohibits “[eJngaging in any other fraudulent or deceptive conduct
which creates a likelihood of confusion or misunderstanding.” 73 P.S. § 201-2(4)(xxi). Courts have
Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
recognized that the UTPCPL is a remedial statute which is designed to protect consumers from
fraud and unfair or deceptive business practices. Boehm, 117 A.3d at 322. Thus, the statute is to
be liberally construed, and the preponderance of the evidence standard applies to claims arising
thereunder. Id.The clear and unambiguous language of the UTPCPL provides that “the court may, it its
discretion, award up to three times the actual damages sustained.” Schwartz v. Rockey, 932 A.2d
885, 890 (Pa. 2007); Metz v. Quaker Highlands, 714 A.2d 447, 450 (Pa. Super. 1998); 73 P.S. §
201-9.2(a). Moreover, the Pennsylvania Supreme Court has held that the award of treble damages
under the UTPCPL is “not to be closely constrained by the common-law requirements associated
with the award of punitive damages” but may be “reviewed by the appellate courts for rationality.”
E-Filed by: Elizabeth Schecter
Schwartz, 932 A.2d at 898.
the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents. 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 9
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
The UTPCPL applies to residential real estate transactions, even when the seller is an
individual. Growall v. Maietta, 931 A.2d 667, 676 (Pa. Super. 2007) (finding that “[t]here is no
question that the purchase or lease of a home, condominium, or apartment for residential purposes
comes under the protections of the UTPCPL” even when the sellers were individuals) (citing
Valley Forge Towers South Condominium v. Ron-Ike Foam Insulators, Inc., 574 A.2d 641, 645
(Pa. Super. 1990)). Appellants offer no legal support for their contention otherwise.
Based upon the testimony presented at trial, this Court found that Appellants were aware
of the moisture damage and deterioration in the front walls and failed to disclose same on the
Disclosure Statement that Appellants prepared in 2018. Appellants’ conduct was deceptive and
caused Appellee’s confusion or misunderstanding of the extent of repairs that were necessary on
the Property. Accordingly, this Court correctly concluded that Appellants violated the UTPCPL,
awarded damages for same and reasonable fees to Appellee as outlined in Section IV(C) above.
Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
It should be noted that the Court could have entered treble damages but chose not to do so.
The Court’s calculation of damages was done carefully with the intent to ensure that all repairs
necessitated by the Appellants’ wrongdoing were covered. If there was some specific item that
Appellants wish to challenge, the Court has little sympathy for same, based upon the fact that the
Court chose not to triple the costs of Appellee’s repairs.
E. Application of the RESDL
The RESDL is a remedial statute that was designed to address the very issues presented in
this case. Under the RESDL, sellers are required to disclose all material defects and not to make
any statements that they know are false or misleading. Medlock v. Chilmark Home Insps., LLC,
195 A.3d 277, 289 (Pa. Super. 2018) (citing 68 Pa.C.S.A. § 7308). A material defect is defined as
E-Filed by: Elizabeth Schecter
“[a] problem with a residential real property or any portion of it that would have a significant
the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents. 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 10
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
adverse impact on the value of the property or that involves an unreasonable risk to people on the
property[.]” Milliken v. Jacono, 60 A.3d 133, 138 (Pa. Super. 2012) (citing 68 Pa.C.S.A. § 7102
in pertinent part).
As discussed in Section IV(B) above, the Court concluded that Appellants knew about the
moisture damage and deterioration in the corner bedroom wall as early as 2013 and did not disclose
same to Appellee on the Disclosure Sheet that Appellants prepared in 2018. N.T. 10/7/2020, 67:11-
25; 68:1-19; 87:1-20; P-1 4 7(A)-(C); D-25 4 7(A)-(C). Based upon the testimony presented at
trial, this Court also concluded that the moisture damage in the front walls was a material defect
that should have been disclosed.
Mr. Lohman testified that the interior of the front walls was rotting, falling apart, and
covered in black mold, which would have been obvious to Appellants in 2013, and which had a
significant adverse impact on the value of the Property and created an unreasonable risk to
Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
inhabitants of the Property. N.T. 10/7/2020 at 12:11 — 13:1-10; 19:4-21; 27:1-5; 36:1 — 37:24.
Accordingly, it is respectfully submitted that the Court properly found that Appellants’ failure to
disclose the moisture damage and deterioration in the front wall of the corner bedroom violated
the RESDL.
E-Filed by: Elizabeth Schecter
10
the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents. 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 11
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
CONCLUSION
It is respectfully submitted that each of the alleged errors raised on appeal have been
addressed by this Court, and that this Court did not err in its findings. The undersigned’s Decision
and Order entered on July 1, 2021 properly found in favor of Appellee and against Appellants on
the issues that were raised by Appellants in this Appeal. Thus, the instant Appeal should be denied.
BY THE COURT:
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COL.
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2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 12
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IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CIVIL DIVISION
KATHLEEN NICHOLS-GOULD,
Plaintiff
y. ) ; 2018-06816
CHARLES P. McDONALD, JR. and
SUSANNE McDONALD,
Defendants
DECISION
The Parties appeared before the undersigned for a trial from October 6, 2020 through
October 8, 2020. This Decision is based upon the evidence, arguments, exhibits, and testimony
presented at trial, along with the submissions of the Parties thereafter. This Court reserves the right
to supplement this Decision with additional facts and legal authority should an appeal be filed.
I. FINDINGS OF FACT |
A. Defendants’ Ownership of the Property
1. The Defendants, Charles P, McDonald, Jr. and Susanne McDonald, purchased property at .
:
3912 Street Road, in Buckingham Township (the “Property””) in October 2005. Trial Tr.
vol. I, 31:20-22, 160:13-15; Trial Tr. vol. III, 15:15-17; P-1 9 2(C); D-25 ¥ 2(C).'
2. Mrs. McDonald adopted the testimony of Mr. McDonald. Trial Tr. vol. I, 99:16-18.
sextin AC RHHOLO1 CASE: B UDHIBOITED-REDGEBelreeuhiscl
3. The Defendants spent thousands of dollars and countless hours renovating the home during
their ownership, making extensive improvements, some of which altered or changed the
structural integrity of the house—converting the garage to a family room, removing a
E-Filed by: Elizabeth Schecter
s’ trial exhibits.
' References to “P-_” refer to Plaintiff's trial exhibits, References to “D.__* refer to Defendant
I N.B. It is the responsibility of
~ fl parties to notify all itereste
E THIS ORDERIJUDGMENT WAS DOCKETED AND SENT ON 07/02/2021 Eelorecion oS F bib 236,
ord er/acio
“72
aneYocuments! >" 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 14
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
infarittatioh
dividing wall, and installing a wood burning stove. Trial Tr. vol. II, 42:1-21, 43:14-44:9: ;
ane
Trial Tr. vol. ITI, 53:13-18; P-1 78; D-25 4 8.
d MIG Montidential inforniatigirand dodirhénts differently thar’ nori-c orittiéntiar
4, The Defendants made changes to the basement and crawl space:
de
a. On approximately three occasions during the Defendants’ ownership of the -
Property, about one quarter of an.inch of water infiltrated the basement after heavy
rains. Trial Tr. vol. II, 51:10-19; Trial Tr. vol. III, 27:17-21.
b. The Defendants installed a second sump pump in 2011 and no longer had issues
with water in the basement. Trial Tr. vol. II, $1:10-14, 80:21-25; Trial Tr. vol. Ul,
27:22-28:19. | |
c. Mr. McDonald occasionally saw water in the crawl space. Trial Tr. vol. III, 29:24-
25, 30:24-31:14, oe
d. The basement was a “wet basement.” Trial Tr. vol. II, 84:16-17; Trial Tr. vol. 1,
Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
29:17-18. , )
ED MESA NEGA
Ae AOARADGEHG y RoheBF FSM SNORE: TE REOTAE SP MEF RURHE ERRATA
5. The Defendants made changes to the yard:
a. Prior to hiring Dougherty Landscaping in 2007 to install a swale on the Property,
the septic system failed at least three times due to the drain field overflowing. Trial
- Tr, vol. I, 64:17-66:8; P-22.
b. The swale diverted water away from the septic system’s absorption area and toward
the front of the house in a side yard, but it did not stop the septic system from
failing. Trial Tr. vol. II, 64:17-23, 66:9-21,
E-Mela (PublinadeanescehiBent: Z2503676
c. The Defendants installed a sand-mound septic system around 2009-2010 that
corrected any septic issues on the Property. Trial Tr. vol. H, 82:11-21.
6. The Defendants made changes to the front bedroom:
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2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 15
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
a. In 2013, the Defendants replaced the lower part of the drywall in the corer
bedroom because there was a large crack in the sheetrock. Trial Tr. vol. II, 67:11-
ve (gus
22, 86:6-23; Trial Tr. vol. I, 72:4-8.
b. The Defendants sistered studs together in the wall and noticed that the gypsum
board was cracked and falling down, but they did not replace it. Trial Tr. vol. IT,
nthaes
differeritf
68:4-19; Trial Tr. vol. III, 72:4-8.
AN RBI RKe Rrasiennk Dy ntsOWae/agand WGMontidéntial informa fen-anerdocuments
c. At that time, the stud “was a little chewed up,” directly above a portion of the
basement where there was termite damage. Trial Tr. vol. II, 85:19-21, 88:10-13;
hone -
Trial Tr. vol. Il, 45:15-25, 46:1-2; D-42._
7. The Defendants converted the garage into a family room:
a. The Defendants hired a contractor, Dave Will Do It, to do the electrical work, which .
involved opening the walls and installing new drywall. Trial Tr. vol. II, 77:12-23.
Case# 2018-0681 6-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
b. The contractor removed the garage door, framed the new wall with windows, and
installed sheetrock, Trial Tr. vol, III, 48:19-24. ,
c. The Defendants did not obtain permits, inspections, or approvals for the conversion.
Trial Tr. vol. II, 75:24-76:5. |
OR bes! ab GENE
d. The Defendants installed tiling on the floor as part of the conversion, but they did
not first level the floor. Trial Tr. vol. II, 76:6-11. They knew the floor was not level
GTR EF FOR oJ HA E2080
when they installed the tiles. Trial Tr. vol. I, 96:7-10; Trial Tr. vol. Il, 51:2-13.
e. The Defendants were aware of some cracks in the tiles, and some of the cracks were
Scans dideBert: 22503676 ~
visible in the MLS listing photographs. Trial Tr, vol. II, 76:12-77:2, 93:24-95 :3; p-
27.
“78 EMpla utuipla
ECOS PASO IGRE ANS
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and doguments:: 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 16
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
Mie nfiden tial informationsand.docwrsnts differentlysthamnen-confidentialinformation
f. The Defendants repaired some of the tiles. Trial Tr. vol. II, 94:15-20; Trial Tr. vol.
I, 52:7-12.
8. The Defendants installed slate tile on the front porch, but they did not level the surface or
prepare it first. Trial Tr. vol. IL, 70:24-71:5, 72:14-18; P-7. *
9. The Defendants made repairs to the split-rail fence on many occasions over the years, using
metal braces or joinder plates, sometimes even replacing the entire rail. Trial Tr. vol. II,
74:11-18. |
10. The Defendants did not make any repairs to the exterior of the home, Trial Tr. vol. II, 71:9-
IL. )
B. The Sale of the Property
11. The Defendants were selling the Property because Mr. McDonald developed malignant
melanoma and could no longer spend time in the sun; the Property required a significant
Case# 2018-06816-89 - JUDGE.35 Received at Coun ty of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
RGR BE RRO ERE RISCOURE. ALB UNE REAR TADOONS THA RARI EBB
amount of outdoor maintenance. Trial Tr. vol. I, 16:5-11.
‘12. At the time of sale, the house was approximately forty-nine (49) years old. D-23.
13. The Plaintiff, Kathleen Nichols-Gould, first-visited the Property in March 2018. Trial Tr.
vol. I, 28:23-29:19,
14, The Plaintiff visited the Property several times: March 11, 2018; March 16, 2018; March
24, 2018; and April 27, 2018. Trial Tr. vol. III, 60:22-61:19.
15, When the Plaintiff first visited, the house was fully furnished, there was snow on the
ground, and there was personal property against the walls in the basement. Trial Tr. vol. I,
03676
30:2-11; P-27; D-1 to D-22.
Pombetraceepe oe
16. The Plaintiff made an offer on the Property which the Defendants immediately accepted.
Trial Tr. vol. II 40:15-41-6; Trial Tr. vol. IJ, 70:23-71-3.
TRAINED
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E.
3 ona
ha
docurients:,-° - 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 17
Policy.of,,
teh BopemeSQg6n®: Case’ Re cor ds of the Appellate and Trial Courts that require filing confidential information and documents differently than-non-confidential information-and
ling somplies with thegravigions of the Bulli rs Jecess
17. The purchase price of the Property was $480,000. Trial Tr. vol. I, 39:14-15; P-2.
- 18, The Plaintiff signed an Agreement of Sale (with certain contingencies) with the Defendants
for the purchase of the Property on March 11, 2018. Trial Tr. vol. I, 39:7-13; Trial Tr. vol.
I, 60:1-15; P-2; D-26, | |
19, The Plaintiff hired a home inspection company to conduct an inspection of the Property.
<: TG RRSPBENS BOG ROGRID-ILAAT ERIS AEDS ACR Ocaineg at RacktyRob Buockst Pyotr AREY BBZ7 NOB OM: Fes Prh0:00.. The filercerdifies that.this,
Trial Tr. vol. I, 39:16-18. .
20. The inspection was done on March 16, 2018. Trial Tr. vol. II, 61:20-23.
21. The home inspection company issued an Inspection Report, dated March 16, 2018, which
indicated that structural components “appear functional.” Trial Tr. vol. II, 62:24-63:15;
D-27 § 3.
22. Further, the Report stated that everything “‘appeared functional” in the interior except for
the steps, stairways, balconies, and railings, which Mr. McDonald subsequently fixed. Trial
Tr. vol. III, 63:16-64:2; D-27 § 9.
23. The Report did not identify any of the material defects that are claimed in this case. Trial
Tr. vol. I, 138:2-5; D-27. |
24. After receiving the Report, the Plaintiff requested repairs to the chimney and radon |
remediation. Trial Tr. vol. I, 39:19-23. |
25, There was an adjustment in the purchase price by $3,500:00, and some work was done to
correct the problems identified by the Report. Trial Tr. vol. I, 154:20-155:23; Trial Tr. vol.
IM, 65:1-66:8.
26. The sale was originally supposed to occur on May 17, 2018, but this was moved up to April
30, 2018. Trial Tr. vol. 1, 8:13-14, 40:12+19; Trial Tr. vol. III, 67:13-70:22; P-2; D-26.?
E-Filed by: Elizabeth Schecter
thilainitBebkenicady
? It is unclear which party needed to move the date up. Trial Tr. vol. II, 67:13-70:22. The Court, however, finds that
this is not a controlling factor.
‘S -
the provisions of the;Public Access PoliGyMbreisixc:
&= 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 18
i3
3
8
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6 C. The Seller’s Disclosure Statement
S
$ 27. On February 22, 2018, the Defendants signed a Seller’s Property Disclosure Statement (the
&
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“SDS”). Trial Tr. vol. I, 31:11-16; P-1; D-25.
AH 2-6 ORO, Fes PNOL0. IN THIS STATEMENT.
+
©
is
$w
and
3
P-1 p. 10; D-25 p. 10.
Ss
oO
8 32. The SDS provides that the Buyer (the Plaintiff) acknowledged receipt of it:
KE
as]
s
9
2o
The undersigned Buyer acknowledges receipt of this Disclosure
& Statement. Buyer acknowledges
that this Statement is not a warranty
oy
g and that, unless stated otherwise in the sales contract, Buyer is
4
© purchasing this property in its present condition. It is Buyer’s
Racad ROCHE
$
~
S responsibility to satisfy himself or herself as to the condition of the
nM.
zgS property. Buyer may request that the property be inspected, at
&
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o Buyer’s expense and by qualified professionals, to determine the
wy
a7)
condition of the structure and its components.
&
.S)
@
. 3 The Plaintiff's copy of the SDS does not include the Plaintiff's signature. P-1. Her signature is only on Defendants’
copy. D-25. See Trial Tr. vol. I, 32:4-6. There was some dispute at trial regarding when the Plaintiff signed the SDS,
E-Filed by: Elizabeth Schecter
but there was no dispute that she received it prior to signing the Agreement of Sale, Trial Tr. vol. I, 31:2-4, 28:19-24,
: and prior to final settlement, Trial Tr. vol. I, 135:7-8, 213:11-16, The Court finds the date of signing is irrelevant to
n
the claims asserted because the Plaintiff credibly testified to relying upon the representations of the SDS prior to
e
Ss finalizing the sale. Trial Tr. vol. I, 32:1-3.
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2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 19
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
me:
P-1 p. 10; D-25 p. 10.
PY Uo
33. The SDS provides the definition of a “material defect” in two locations: (1) in the
af
background section titled “Information Regarding the Real Estate Seller Disclosure Law,”
and (2) in the disclosure section titled “Miscellaneous—Additional Material Defects.” P-1
p. 1, {20(D); D-25 p. 1, | 20(D). It has two elements:
A material defect is a problem with a residential real property or any
portion of it that would have a significant adverse impact on the
value of the property or that involves an unreasonable risk to people
me
on the property. The fact that a structural element, system or
ome
subsystem is at or beyond the end of the normal useful life of such
a structural element, system or subsystem is not by itself a material
defect.
P-1 p. 1, §20(D); D-25 p. 1, { 20(D); Trial Tr. vol. Il, 109:20-22.
34. There was no evidence that either party did not comprehend or understand the language of
128 Plot
the SDS.
of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
y ats CRAG
35. The following sections of the SDS are relevant to the claims in this case:
ee
a. Paragraph 5 asks about sump pumps and water infiltration in the basements and
crawl spaces. The Defendants said the Property has two sump pits and two sump
RUKE Brett Rte
pumps—both of which have run and are in working order. P-1 9 5(A); D-25 ¥ 5(A).
With respect to water infiltration, the Defendants were aware of water leakage,
1%BAS WEG EEE REIT, COMTI
accumulation, or dampness within the basement or crawl space, and they were
aware of repairs or attempts to control the water or dampness problem. P-1 J 5B);
Case# 2018-06816-89 - JUDGE:35 Received at Count: y
D-25 { 5(B). In their explanation to the “yes” answers, Defendants indicated “2nd
BARB Lubathe es FaiBecnt: 22503676 -
sump pump installed” and “crawl space may get some moisture during heavy
rainfall 3/4 inches.” P-1 5; D-25 9 5, See Trial Tr. vol. I, 32:10-33:12, 161:4-
Pisses, Lead
162:7; Trial Tr. vol. I, 48:9-13; Trial Tr. vol, Il, 42:1-25.
~]
the: PublicAccess Policy Prrrcuzpects
of the Appéilate and Trial Courts that require filing confidential information. and documents differently than-non-confidentiat information and documents. +s. 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 20
ef visions.
b. With respect to flooding and drainage on the Property, the Defendants maintained
flood insurance, and they were not aware of any past or present draining or flooding
FORCE ERIE BOTY BOGIES BIL: JOBRIF ESS RUDGEIERE ceived art MawkisPob Rocks dtr Hoty BAT OR OM, £26 PMO: Gaxkhe: filet. certifies thatibis.filing complies: withéhenare
problems affecting the Property, nor were they aware of any drainage or flooding
mitigation on the Property. P-] | 18(A); D-25 ] 18(A). But, the Defendants were
aware of a man-made feature that temporarily or permanently conveys or manages
storm water, and in the explanation for this “yes” answer, the Defendants wrote
“small swale.” P-1, { 18(A); D-25, { 18(A); Trial Tr. vol. I, 35:7-38:6; Trial Tr. vol.
Il, 64:3-12.
c. In Paragraph 7, the Defendants were not aware of (1) any past or present movement,
shifting, deterioration, or other problems with walls, foundations, or other structural
components; (2) any past or present problems with driveways, walkways, patios, or
retaining walls on the Property; and (3) they were not aware of any past or present
water infiltration in the house or other structures, other than the roof, basement, or ~
crawl spaces. P-1 { 7(A)-(C); D-25 | 7(A)-(C). See Trial Tr. vol. I, 33:13-34:21.
d. In Paragraph 8, Defendants made additions, structural changes, or other alterations
to the Property including converting the garage into a family room in 2007,
- removing a dividing wall between the living room and dining room in 2015, and
adding a woodburning stove in the family room in 2011. P-1 | 8; D-25 ] 8; Trial
"75 pMB MELONTER BOPEMRBINET:’Cas e Records
. Tr. vol. I, 184:6-14; Trial Tr. vol. III, 48:12-18, 53:13-54:8. The addition of the
wood burning stove was the only addition/alteration for which the Defendants
obtained a permit and final inspection/approval. P-1 8; D-25 8. See Trial Tr. vol.
J, 34:22-35:6.
E-Filed by: Elizabeth Schecter ©
Betas GPuneyAs Asche Brattionatiyatsanenaeoaird Min Pid nfidentiabinformationaad documents differently thapnan-confidentatintoration and -daQumenttscaax:. 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 21
- Case# 2018-06816-89 - JUDGE.35 Received at Coun ty of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee $0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
e. ‘Under Paragraph 20, for “miscellaneous” disclosures, the Defendants answered
2
“no” to the question of whether they were “aware of any material defects to the
property, dwelling, or fixtures which are not disclosed elsewhere on this form.” P-
1 { 20(D); D-25 { 20(D). See Trial Tr. vol. I, 38:7-18; Trial Tr. vol. II, 74:7-10.
36. Further, the Defendants made the following relevant disclosures:
a. They possessed no expertise in contracting, engineering, architecture,
environmental assessment or other areas related to the construction and conditions
oe
of the Property and its improvements, P-1 | 1(A); D-25 J 1(A). See Trial Tr. vol. I,
160:4-12; Trial Tr. vol. Il, 39:9-15.
b. They were occupying the Property as of February 22, 2018. P-1 | 2(A); D-25 J
2(A).
c. Termites had previously affected the Property, and the Property was treated for this
problem when the Defendants purchased it in 2005. P-1] 6; D-25 { 6; Trial Tr. vol.
I, 187:21-188:8; Trial Tr. vol, I, 89:25-90:21; Trial Tr. vol. UI, 45:15-46:10.
D. Problems and Repairs
37. After settlement, the Plaintiff discovered several problems with the Property that she
asserts are material defects that the Defendants failed to disclose:
a. Flooding in the basement and adjoining crawlspace, Trial Tr. vol. I, 42:17-61:7; P-
3 to P-S; |
~~
b. Flooding in the yard, Trial Tr. vol. I, 63:16-70:4; P-11A;
c. A deteriorated and failing front wall on thé main level (affecting both front
* B-MRD GPa het cHeiBert 22503676
bedrooms and the family room), Trial Tr. vol. I, 70:5-89:6; P-9 to P-11;
I PARGEIS yeRehe BA Re
‘d. Cracked floor tiles in the family room, Trial Tr. vol. I, 97:17-103:3; P-6; P-27;
and. Cogumentiecns:
contde 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 22
Vania ft
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
e. An improperly installed front porch, Trial Tr. vol. I, 89:8-92:15; P-7;
atias inigunalion
andedocuments differently dhan.nen-
f. Deteriorated masonry on the front of the house, Trial Tr. vol. I, 92:16-97:16; P-8;
Me alae wore
and 7
g. A failing split-rail fence around the back of the Property, Trial Tr. vol. I, 103:4-
106:3; P-11B. )
opata
38. The Plaintiff presented photographs of these problems that she took after purchasing the
Property. P-4 to P-11; P-29; D-50.*
39. The Plaintiff had mold remediation performed in the basement, and she has a dehumidifier
eos we
Abneke Brett ona paesCTVSR/EORire2b P ktpnsidential information
running twenty-four/seven in the basement: Trial Tr. vol. I, 60:12-20.
40. The Plaintiff had the concrete wall in the basement filled with cement to keep the water
out. Trial Tr. vol. I, 61:1-4.
41, Scott Cambum of Urwiler & Walter, a land development, surveying, and engineering firm,
Case# 2018-06816-89 - JUDGE:35 Received at Count y of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
testified as to the topographical survey and plan to address grading issues of the Property.
Trial Tr. vol. I, 246:20-253:19,
42. Mr. Camburn prepared a proposal for a‘plan of action for engineering and surveying
services. Trial Tr. vol. I, 247:17-3; P-16,
43. Mr. Camburn was asked to generate a plan of existing conditions, to prepare a grading plan,
PERO RAGS AS GOUT
and to prepare an erosion control plan. Trial Tr. vol. I, 252:13-253:12; P-16.
44, Thomas Gavin was hired to do some of the work at the Plaintiff's home. Trial Tr. vol. I,
107:12-13.
vere
eee
‘There was some discussion at trial regarding the dates the pictures were taken. On the third day of trial, the Parties
submitted additional exhibits that include the dates the pictures were taken for clarification, Trial Tr. vol. Il,
3:16-
10:6; P-29; D-46 to D-49, .
10
beahet G6 umty Anh Ralls Rrottionatéry onsotvacreqaird Ae erapcfidential ioformation. aul stocuments-oifferenty, than.aen-confidantiayinformation.and-gaguments richigeen! 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 23
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
45. Mr. Gavin provided a proposal for the repairs dated November 24, 2019, which he testified
relay Pt
was fair in value. Trial Tr. vol. I, 224:24-246:3; Trial Tr. vol. I, 20:5-12; P-15.
46, Mr. Gavin inspected the front walls in the bedrooms, the converted garage, and the exterior
masonry—not the basement or the landscaping/fence. Trial Tr. vol. I, 221:8-18; P-14.
47. Mr. Gavin made various repairs including the following:
a. Mr. Gavin raised the floor in the family room. Trial Tr. vol J, 223:5-16.
b. Mr. Gavin reframed the interior walls and installed vinyl siding on the exterior.
Trial Tr. vol. I, 223:18-20.
c. Mr, Gavin installed new electrical. Trial Tr. vol. I, 224:3-7,
d. Mr. Gavin removed the concrete on the front porch and poured a new slab, draining
away from the house. Trial Tr. vol. I, 224:20-23.
e. Mr. Gavin sistered the studs in the basement and fixed the ribbon board and sill
Case# 2018-06816-89 - JUDGE:35 Received at Count y of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
plate in the basement. Trial Tr. vol. I, 60:22-25.
48. Michael Lohman was hired by the Plaintiff to inspect the house and give an opinion
concerning the conditions of the house, which Plaintiff relied on when she contracted for
repairs. Trial Tr. vol. I, 106:4-15.
49. Mr. Lohman is qualified as an expert in residential construction, and the Parties agreed that
he was permitted to testify about his observations of the conditions of the Property and the
cause of the conditions he observed. Trial Tr. vol. II, 4:18-23.
50. Mr. Lohman was also permitted to testify as to the reasonableness and necessity of the
78 E.Mpla (Rubia headesdHaeiBept: 22503676
work and the costs that were incurred to fix the issues, Trial Tr. vol. IJ, 5:24-6:1; P-14.
51. Herbert Scott conducted a site inspection of the Property on March 6, 2019. Trial Tr. vol.
EF GA,
OIRAGIES EER
Il, 130:21-24, | |
11
ERM
abe woes
a Mie kipitidentialinformatios aboddéuments differant! than.non-confidertiatintesmation.and- documents.
Ate os
2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 24
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
nae
52. Mr. Scott is qualified as an expert in the building science, general construction, and home
te
inspection field, Trial Tr. vol. II, 99:20-23.
A Magia FOfe
53. There was evidence of water in the basement. Trial Tr. vol. II, 9:22-12:10.
54. There was evidence of water damage in the interior walls of the bedrooms and the family
bosip oO
room. Trial Tr. vol. I, 221:22-223:1; Trial Tr. vol. I, 12:15-16:2, 175:4-24.
55. This water damage caused rotted studs, joists, etc. in the walls of the bedrooms and the
family room. Trial Tr. vol. I, 221 2-973:1; Trial Tr. vol. IJ, 175:14-17.
56. There was evidence of termite damage in the walls in addition to water damage. Trial Tr.
rat eH?
vol. II, 22:12-20, 145:4-146:15, 158:20-159:1, 175:4-24.
57. Drywall with a date of 2013 was installed in the bedroom. Trial Tr. vol. Il, 13:1-6; P-9.
58. The tile on the floor in the family room was cracked. The floor was not properly prepped.
and leveled. Trial Tr. vol. I, 223:5-16; Trial Tr. vol. I, 16:3-18:5, 162:12-21.
Case# 2018-06816-89 - JUDGE:35 Received at Coun ty of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
BPPREEOIEOREEIG MOEA BF Petra i emRbestas County niikuilcke BrattionatapebsCneQeOat
59. The front porch was not properly sloped away from the house. Trial Tr. vol. I, 224:20-23,
Trial Tr. vol. I, 18:6-19:25, 167:13-168:17, )
ges
60. The original construction of the home, approximately fifty (50) years prior to the Plaintiff's
Se
purchase, led to problems with water in the walls and damage to the exterior masonry. Trial
Tr. vol. I, 234:8-238:19; Trial Tr. vol. Il, 27:24-28:12, 144:23-145:3, 148:24-149:11,
159:15-23, 165:23-166:5.
E. Damages and Repairs
61. Plaintiff asserts that the total estimated repair for the property is $241,259.58, including
o Sennes dHeletBept: 22503676 *
work that the Plaintiff has already done and work that the Plaintiff expects to have done.
P-14,
S78 BMRA BQHE)
12
ge
Rae
A RucKe Erathionatayiots HhaZegaita 125 Pltpntidentiat information: ard daguments differentiy.than-nes-eantidential dtp Gpatlenea NG AO CUR eM Rex: 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 25
ong
ly of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee $0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
ve
I. PROCEDURAL POSTURE
eo ocrva g
The Plaintiff filed a Complaint on November 26, 2018 asserting three counts: (I) Violation
of the Real Estate Seller Disclosure Law (“RESDL”), 68 Pa.C.S. §§ 7301 et seq.; (II) Violation of
the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. §§ 201-1 et seq.;
and (III) Negligence.° The Defendants filed an ‘Answer, New Matter, and Counterclaim on
December 28, 2018 asserting a breach of contract.® The Plaintiff responded on January 8, 2019.
The Praecipe for a Jury Trial was filed on December 10, 2019, and the case was initially ordered
a OUTTA
on the trial list for the Trial Term beginning March 2, 2020.’ The Parties filed Pre-Trial
- Memorandums on February 24, 2020.
The undersigned held a telephone conference with the Parties on September 24, 2020. One
of the issues raised during this conference
was whether there was a right to a jury trial for a claim
asserted under the RESDL. The Parties agreed that there was no right to a jury trial for such a
claim, and therefore, a waiver trial was held before the undersigned from October 6, 2020 through
October 8, 2020. |
At the beginning of trial, the Parties also stipulated to withdrawal of a claim conceming
misrepresentation of square footage of the property. Trial Tr. vol. I, 8:2-5. And, the Parties
Ae: PERE TERS As CPUTEV
stipulated that the request for attorneys’ fees under the UTPCPL would be heard through post-trial
submissions, without requiring expert testimony. Trial Tr. vol. I, 8:6-12.
Case# 2018-06816-89 - JUDGE:35 Received at Count
a Bes diet: iBept: 22503676
* Prior to trial, the Parties stipulated to the withdrawal of Count II for Negligence—leaving only two counts, one for
violation of the RESDL and the other for violation of the UTPCPL. Stipulation, Mar. 2, 2020; Trial Tr. vol. I, 7:16-
ey
20.
* Prior to trial, the Parties stipulated to withdrawal of the counterclaim. Stipulation, Mar. 2, 2020; Trial Tr. vol. I, 7:21-
oy
23.
| EMRE BYRNE
7 The case was subsequently ordered on the trial list for the Trial Term beginning April 13, 2020; the Trial Term
6
beginning August 3, 2020; and finally, the Trial Term beginning September 28, 2020.
ARGS!
13
2,
vifferently thacmemcontidentatiniumatiosand documentscroyed
A hen ee
2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 26
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
I. CONCLUSIONS OF LAW
WeFR om
A. RESDL, 68 Pa.C.S. §§ 7301 et seq:
There is no dispute about the applicability of the RESDL. See 68 Pa.C.S. § 7302; Medlock
te Te (Eres oo
y. Chilmark Home Inspections, LLC, 195 A.3d 277, 288 (Pa. Super, 2018) (stating the RESDL
“applies ‘to all residential real estate transfers’ except for certain types of transfers”). The purpose
of the RESDL is “to protect the purchaser of real property, and the method of protection is a
Nts HAGA ed 2h Pld nticentetintormetioneaacd.decoments
disclosure statement that is included within the bill that the sellér has to complete so that
lana ~L
presumably the buyer accurately: knows what the seller knows about the property when the sale
occurs.” Medlock, 195 A.3d at 290 n.7 (quoting Phelps v. Caperoon, 190 A.3d 1230, 1245 (Pa.
Super. 2018)). Further, the RESDL “protects the purchasers of real property and ensures that both
parties have some parity of knowledge regarding any issues with the property.” Id. (quoting Phelps,
190 A.3d at 1246).
Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
Under the RESDL, homeowners are required to disclose material defects to the purchaser:
SB AIREAT Ok GPHTEY OS FORE ERATRNMNAY
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). A signed and dated copy of the
property disclosure statement shall be delivered to the buyer in
accordance with section 7305 (relating to delivery of disclosure
form) prior to the signing of an agreement of transfer by the seller
and buyer with respect to the property.
68 Pa.C.S. § 7303. If a seller does not know of certain information that is required to be disclosed
WERE:
at the time disclosure is made, “the seller may make a disclosure based on the best information
3676. 77°
available to the seller.” Id. § 7306. There is no exception to the disclosure requirements. Phelps,
iBopt: Z2
190 A.3d at 1238.
88 Fé
A material defect is defined as:
wre RS: CS
” BL AMBE HubliDathe
14
ABA
‘Rie
d oe! wméntsidifferently then aes-oorfidential infarmatar-ar-dacuments, 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 27
The filer certifies that this filin g complies with the provisions of the Public Access Policy of
Bpeseds
_ A problem with a residential real property or any portion of it that
TPS
would have a significant adverse impact on the value of the property
or that involves an unreasonable risk to people on the property. The
~
fact that a structural element, system or subsystem is near, at or
beyond the end of the normal useful life of such a structural element,
‘system or subsystem is not by itselfa material defect.
vA
Be,
68 Pa.C.S. § 7102. The SDS in this case defines a material defect with the exact same language.
P-1 p.1, 20(D); D-25 p.1, | 20(D). “Generally, a seller ‘should only be required to reveal material
*
Etemte"
defects with the actual physical structure of the house, with legal impairments on the property, and
with hazardous materials located there.” Phelps, 190 A.3d at 1237 (quoting Milliken v. Jacono, 60
G6 Reerelveront Gavetn ph euats Srratraactequnts OTA 2RNAte HRPBdnfidentialinfoxation dnd 203
A.3d 133, 140 (Pa. Super. 2012) (en banc) (examining 68 PaC.s. § 7304 and discussing the
mandatory disclosures under the RESDL that'deal with the actual physical structure of the house,
0
Arie
its components, and the condition of the curtilage-—Section 7304(a)(3)-{13); potential legal
$0.00.
impairments attached to the property—Sections 7304(a)(15)-(16); and hazardous substances on
the property—Section 7304(a)(14))).
of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
There is an affirmative duty imposed upon the seller:
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 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. § 7308; Medlock ) 195 A.3d at 289-90. The Pennsylvania Superior Court in Medlock
Case# 2018-06816-89 - JUDGE.35 Received at Count y
discussed the disclosure requirement of the RESDL:
[W]e do not interpret Section 7308 to limit the seller’s affirmative
duty to disclose only “known material defects.” Rather, by its plain,
unambiguous language, Section 7308 also affirmatively requires the
seller, in completing the property disclosure statement, to “not make
Bc hectdRoPt:
SR ROP RE
any representations that the seller or the agent for the seller knows
or has reason to know are false, deceptive or misleading[.]”
x4
1S
th
men.againential infarmation-ang documents, sans
"pagina
2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 28
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
195 A.3d at 290 (quoting 68 Pa.C.S. § 7308),
Goes
PIR
“[A]ny person who willfully or negligently violates or fails to perform any duty prescribed
ose
theaerently
by any provision
of this chapter shall be liable in the amount of actual damages suffered by the
“asp fice’
buyer as a result of a violation of this chapter.” 68 Pa.C.S. § 7311(a). However, the seller is not |
is-diff
liable for any errors, inaccuracies, or omissions in the SDS if (1) the seller had no knowledge of
the error, inaccuracy, or omission; (2) if the error, inaccuracy, or omission “was based on a
oes
| reasonable belief that a material defect or other matter not disclosed had been corrected”; or (3)
Bers
cat Some ppevats smattrona tenors HA ZRNAte 1nd Phd nfidentiakintormation and act
PTS
the error, inaccuracy, or omission “was based on information provided by a public agency, home
inspector, contractor or person registered or licensed. . . .” Id. § 7309(a). Although there may be
an “as is” clause in the SDS, the “RESDL contains no exceptions to the disclosure requirements,
I
MA
including the presence of an ‘as is’ clause in an agreement to transfer residential real estate, and
thus, Seller must comply.” Phelps, 190 A.3d at 1238.
Case# 201 8-0681 6-89 - JUDGE:35 Received at Count y of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
The Plaintiff is seeking actual damages, plus interest capped at the sales price of the
wee
property under the RESDL, 68 Pa.C.S. § 7311, because the Defendants did not disclose material
defects of the Property about which they knew or had reason to know. The “actual damages” that
may be awarded are “repair costs, capped by the market value of the property.” Medlock, 195 A.3d
at 290 (quoting Phelps, 190 A.3d at 1246). The defects that the Plaintiff asserts claims for include
(1) flooding in the basement and crawl space; (2) flooding in the yard; B) deteriorated and failing
front wall on main level in the bedrooms and family room; (4) cracked floor tiles in the family
room; (5) improperly installed front porch; (6) deteriorated masonry on the front of the house; and
GE:
- (7) failing split-rail fence. Each of these alleged material defects is discussed below.
EMcos tape Ta sent a0
The Court applies the definition of a material defect found in the RESDL and the SDS—
“A problem with a residential real property or any portion of it that would have a significant
16
E. HATA
widen,
£0
HDS Poa tidentiai-ioformation and.doeampniscdifferent! 'y thaswaencentidential infosmetion,and_doc umen, ferry 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 29
erin
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
EE
adverse impact on the value of the property or that involves an unreasonable risk to people on the
he
property.” 68 Pa.C.S. § 7102; P-I p.1,
eA
{20(D); D-25 p.1, | 20(D). The alleged material defects in
this case are all related to the actual physical structure of the Property. See Phelps, 190 A.3d at
ste
1237 (quoting Milliken, 60 A.3d at 140). Importantly, the seller is not liable for any errors,
ott
Méabhy
inaccuracies, or omissions in the SDS if (1) the seller had no knowledge of the error, inaccuracy,
or omission; or (2) if the error, inaccuracy, or omission “was based on a reasonable belief that a
oe i one cS
material defect or other matter not disclosed had been corrected.” 68 Pa.C.S. § 7309(a). And, the
_ RESDL “requires the seller, in completing the property disclosure statement, to ‘not make any
representations that the seller or the agent for the seller knows or has reason to know are false,
deceptive or misleading[.]’” Medlock, 195 A.3d at 290 (quoting 68 Pa.C.S. § 7308).
Appin et
1, Flooding in the Basement and Crawl Space
The Court does not find flooding in the basement and crawl space was a material defect for
Case# 2018-06816-89 - JUDGE:35 Received at Coun ty of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
which Plaintiff can recover. The Defendants were aware of significant water in the basement on at
GoHetA op Blsks drrotaaetquas O7AO RDI
re
Ty
least three occasions during heavy rains prior to installing the second sump pump, characterizing
the basement as a “wet basement.” The Defendants admitted that the basement flooded prior to
installation of the second sump pump. The Defendants had an affirmative duty not to make any
representations that they knew were false, deceptive, or misleading; they were required to disclose
any known material defects. See 68 PaCS, § 7308; Medlock, 195 A.3d at 289-90. However, the
CE Re Reversal
Defendants are not liable for failure to disclose a material defect if the omission of it on the SDS
was based on a reasonable belief that the material defect had been corrected. See 68 Pa.C.S. §
Ze UDRE
pant een a Op Py SAA AD:22503676
7309(a). The Court finds that Defendants did not have any flooding issues after the installation of
the second sump pump. The Plaintiff, although she states that she experienced flooding on multiple
E-PMEP SP eI h Dem AecRedidRept:
occasions, only provided photographs of one instance when nearly five inches of rain fell.
17
Lge
mormatiosand documeatsat,
fyte
2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 30
i
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
The Court finds that the Defendants reasonably believed the material defect was corrected
"TGfeese
by the addition of the second sump pump. There was no credible evidence that they experienced
differently:thanaes-aentidential
significant flooding in the basement after the installation of the second sump pump. The
satn £0, AP *
Defendants indicated on the SDS that a second sump pump was installed and that the crawl space
may get some moisture during heavy rainfalls. Based on the testimony, the Court finds this
disclosure was sufficient. . ,
anc.doguments
Bee’
2. Flooding in the Yard
74
The Court does not find that flooding in the yard was a material defect for which the
quots O70 2apate1 a8 Pho nfideatalsnfarmation
Plaintiff can recover. There was no evidence presented that the flooding had a significant impact
FE ig
on the value of the Property or that it involved an unreasonable risk to people.on the Property.
Neither expert provided significant testimony regarding the flooding of the lot. The Defendants
admitted that a swale was installed, and that the water was redirected to the. side yard area.
Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
Furthermore, there was work done replacing the septic system, which apparently fixed the
is me
Th t
problem. The Defendants even hosted a backyard wedding in May 2015, following a heavy
1
) rainstorm. Trial Tr. vol. II, 79:8-80:25; D-32 to D-36. It would have been reasonable for them to
15) dar AZBOP CED sUaNee- Cea Rei cedcet Steet pp lists Mratiioiad
hay
believe that there was no yard drainage issue which had a Significant impact on the value of the
property.
On the SDS, Defendants answered “no” they were not “aware of any past or present
drainage or flooding problems affecting the property.” Based on this language, asking if the
Defendants were aware of “any past . . . drainage or flooding problems,” one could argue that the
UPUPIED DEORG:RERtERCOL: 22503676
Defendants clearly were aware of a “past” flooding problem and for that reason should have
disclosed a past flooding problem on the SDS. However, as with the flooding in the basement, the
Defendants reasonably believed the problem ‘was corrected by the replacement of the septic
ORS
18
aes ig
"EPMA
ead documents: crux
ABA
Ba Phonfidentiahintsrmation and documents cifferently thah:Pen-ceblidential information 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 31
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
“V7e Pent Pe
system, and therefore, the Court will not find them liable for failing to disclose past drainage
problems.
3. Deteriorated and Failing Front Wall in the Bedrooms and Family Room
Phear RF
_ The deteriorated and failing front walls are a material defect for which Plaintiff can recover.
Deterioration on the interior of the walls—rotting studs, moist insulation, deteriorated gypsum
-
board—has a significant adverse impact on the value of property, evidenced by the cost of
27F Bee pate wpe
replacing such walls. The Defendants admit to fixing a crack in the corner bedroom, which
required replacing the drywall and sistering the studs in 2013. Both experts noted that the interior
walls were moist and that termites could not cause moisture damage—trather, moisture likely led
AAR AE
to the termite problem.
When the Defendants replaced the drywall in 2013, they were able to.look into the wall
and see what was happening. Mr. McDonald admitted he sistered the studs because the original
Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
eQaseB OM AEB IG SEALER PEGs WAGE: 8 Recedeitds CourtyippBlaks MnotfordtGnuots WAIApate
Ate
studs were rotted. He saw the rotted gypsum board, but he did not replace it. In 2013, the interior
cel
ofthe wall looked “similar” to what was shown in the Plaintiffs photographs presented at trial.
The Defendants were clearly aware of the deteriorated interior walls in the bedroom. Their
Apith 1
knowledge of this damage in at least one bedroom should have been disclosed as a material defect
on the SDS. On the SDS, the Defendants indicated they were not aware of any problems with
deterioration of walls or any water infiltration in the house; other than the basement or crawl space.
oe a re)
Based on Mr. McDonald’s replacement of the drywall in the comer bedroom, these statements
were either false, deceptive, or misleading, and the Defendants are liable.
E-Meln SPubiicebeerechearéept: 22503676
4. Cracked Floor Tiles in the Family Room
The cracked floor tiles in the family room, some of which were obvious, are a.defect. It is
undisputed that at least some of the cracked tiles were visible when the Plaintiff visited the property
19
Po =
'
Mt
Sean iis
ate ¢fa
tial Infozmeaea POCUM eMnd 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 32
$0.00.‘ The filer certifies that this filing complies with the provisions of the Public Access Policy of
simp gee
prior to purchasing the home. Both she and her inspector should have seen the obvious tiles and
could have checked the entire floor with little effort. Floor tiles will crack, there was no expert
tor
testimony presented suggesting a “normal useful life” of this particular structural element. This is
eds
the type of damage which purchasers of homes typically identify and then bicker with the seller -
aanaie
thap
over a credit at the closing. The Court does not find that the cracked tiles would have had a
ine Pkpntide ntiekimormmaionand dddcaranis cifferently,
“sipnificant adverse impact on the value of the property,” and therefore this defect does not rise to
8 Kone Pre
the level of a “material defect.”
The Court finds the Defendants are not liable for failing to disclose this defect. As
pt
mentioned, the purpose of the RESDL is to protect the buyer so that the buyer and the seller “have
"
Sate adn ap Fate of i
some parity of knowledge regarding any issues with the property.” Medlock, 195 A.3d at 290 n.7
ee
.
(quoting Phelps, 190 A.3d at 1246). Although there are no exceptions
pRaes En Goins ve Btiaks Grothoiatéyiotsdha2agater
to the disclosure
requirements, the Parties had some parity of knowledge regarding the cracked floor tiles because
Case# 2018-06816-89 - JUDGE:35 Received at Coun ty of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
une
they were visible at the time of sale, and the Court does not find that cracked floor tiles would have
“oF
had a significant adverse impact on the value of the property.
5. Improperly Installed Front Porch
ot
Pyteme
The Plaintiff has not proven the improperly installed front porch is a material defect for
ftet
no
which she can recover. It is undisputed that the frorit porch did not slope away from the house.
Although Mr. McDonald installed the porch tile on top of the existing concrete without first
VAP ot.
leveling it, there is no evidence that the Defendants knew that there was a material defect of water
oer
pooling. There was no evidence that the Defendants ever experienced water pooling on the front
Gi: $7 4Rcpt: 225036 76
porch. There is no evidence that this happened on any occasion other than when the Plaintiff took
the pictures which were presented at trial, It is not likely that the improperly installed front porch
Sy APBR he
led to a significant amount of deterioration in the front wall and basement. The Court finds the
AHA ch
20
oe
ee
ifideatial irformationnacidecumentSenne:
tt
2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 33
of the Public Access Policy of
weet
Defendants’ testimony credible that they were not aware of this alleged material defect, and ©
Te maa
therefore, they are not liable for it.
6. Deteriorated Masonry on the Front of the House
nt
$0.00. The filer certifies that this filing complies with the provisions
fie
5
The Plaintiff has not proven the deteriorated masonry on the front of the house is a material
Stanet, ppBiaks salttioiablequets OTA 2ARNIte Ti Phonfidential intormation and documnénfs-ditferently thassnah. Sn
defect for which she can recover. The experts concluded that the deteriorated masonry was from
water infiltration due to the original construction of the home, which was typical construction for
FS
Woe
" homes that were approximately fifty (50) years old. “The fact that a structural element. . . is near,
Timed
at or beyond the end of the normal useful life of such a structural élement . . . is not by itself a
material defect.” 68 Pa.C.S. § 7102. Although Mr. McDonald opened the front bedroom wall and
saw the deteriorating wood and gypsum board, there was no evidence that he saw deteriorated
masonry. The Court cannot assume he had knowledge of this condition and finds the Plaintiff has
- not proven the deteriorated masonry is a material defect for which she is entitled to recover.
Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
7. Failing Split-Rail Fence
The Plaintiff has not proven the failing split-rail fence is a material defect for which she
can recover. Although the Defendants were aware of the failing split rail fence, there was no
has
evidence to support a claim that this was a material defect that adversely impacts the value of the
86 Rapeiventet
. property or involves:an unreasonable risk to people on the property. 68 Pa.C.S. § 7102. Split-rail
fences of the type on the property regularly need replacement pieces, and their “normal useful life”
is quite limited.
B. UTPCPL, 73 P.S. §§ 201-1 et seq.
03676
The purpose of the UTPCPL is to “protect the public from unfair or deceptive business
practices,” Gregg v. Ameriprise Fin., Inc., 195 A.3d 930, 941 (Pa, Super. 2018) (quoting Richards -
7 UBIISh DCR Pe chesedRCP
RA TS, SVT ZERE
E-PaIND
the Gagne OLR
2]
ive
spree
2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 34
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
v. Ameriprise Fin., Inc., 152 A.3d 1027, 1035 (Pa. Super. 2016)). It is for consumer protection. Id.
at 940.
Under the UTPCPL, “[e]ngaging in any [] fraudulent or deceptive conduct which creates a
documents diterently than none
likelihood of confusion or misunderstanding,” is an unfair method of competition or unfair or
deceptive act or practice. 73 P.S. § 201-2(4)(xxi). Such an act or practice is unlawful. Id. § 201-3.
“[AJny deceptive conduct, ‘which creates a likelihood of confusion or of misunderstanding,’ is |
Crp
actionable under 73 P.S. § 201-2(4)(xxi), whether committed intentionally (as in fraudulent
misrepresentation), carelessly (as in a negligent misrepresentation), or with the utmost care (as in
am.F Bldonfidentiat intoanstionsand
APA eat
strict liability).’” Gregg, 195 A.3d at 939 (quoting Commonwealth v. TAP Pharm. Prods., Inc., 36
A.3d 1197, 1253 (Pa. Cmwith. 2011)). Strict liability is imposed “on vendors who deceive
consumers by creating a likelihood of confusion or misunderstanding in private, as well as public,
causes of actions. Carelessness or intent, required for negligent or fraudulent misrepresentations,
Case# 2018-0681 6-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
Grams
BF HEM SHARE: Ieee bem as. County Ant cule BrathimoteyonsOTee/egatd
may be absent when perpetrating ‘deceptive conduct’ under 73 P.S. § 201-2(4)(xxi).” Id. (citing
TAP Pharm. Prods., 36 A.3d at 1253). The purchase of a home for residential purposes is protected
Suh Tay
-by the UTPCPL. Growall v. Maietta, 931 A.2d 667, 676 (Pa. Super. 2007) (citing Valley Forge
(
Towers §. Condo. v. Ron-Ike Foam Insulators, Inc., 574 A.2d 641, 648 (Pa. Super. 1990)).
The UTPCPL provides for a private right to recover damages:
Any person who purchases or leases goods or services primarily for
lanwet
personal, family or household purposes 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
keer dieciBept: 22503676 ~
_ to recover actual damages or one hundred dollars ($ 100), whichever
is greater. The court may, in its discretion, award up to three times
the actual damages sustained, but not less than one hundred dollars
($ 100), and may provide such additional relief as it deems necessary
or proper. The court may award to the plaintiff, in addition to other
EMala ubtina
relief provided in this section, costs and reasonable attorney fees.
EB RANB LON GAEIE yet
22
Ect
er
2H Fldontidential inforavationvarid documentssditterent|. than non-cinfilentiahintormation ansdacumentsi: :. ; 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 35
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
iat eens
Id. § 201-9.2. This gives the trial court discretion to award treble damages and attorneys’ fees. Id.
Plaintiff is seeking up to three times actual damages, as well as attorneys’ fees and costs
oe
‘under the UTPCPL because the Defendants engaged in “fraudulent and deceptive” conduct. At
a EAp
this time, the Court will only address whether to award up to three times actual damages for
“fraudulent and deceptive” conduct. * The undersigned found that Defendants failed to disclose
75 yeris
material defects in the deteriorated interior walls in violation of the RESDL. See Section ILA.3,
Seas
supra. This constitutes a violation of the UTPCPL for which Plaintiff may recover up to three
times actual damages. 73 P.S. § 201-2(4)(xxi).
IV. DAMAGES
Payee
As mentioned, “[a] material defect is a problem with a residential real property or any
EO ROCSOS. GO Unsy/of aulieke Erattionatay.orsQrvac/egatd
portion of it that would have a significant adverse impact on the value of the property or that
involves an unreasonable risk to people on the property.” P-1 D. 1, | 20(D); D-25 p. 1, | 20(D);
FUELS
Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
Trial
Tr. vol. I, 109:20-22 (emphasis added).
As discussed above, Plaintiff is entitled to recover for Defendants’ failure to disclose the
fee
material defect of the deteriorated interior walls in the front bedrooms and family room. See
Section II.A.3, supra. Plaintiff's estimated repairs for the family room total $62,779.09. P-14 p.
1. Plaintiff’s estimated repairs for the bedrooms total $44,727.00. P-14 p. 2. The Court does not
find Plaintiff is entitled to these full amounts as actual damages for violation of the RESDL and
UTPCPL because some of the repairs are optional and not necessary and some of the repairs are
not related to the deterioration in the walls. See P-14; P-15.
87° CARA Bp eblige WeevescHeniBent 22503676"
PES sYWOGE
* At the beginning of trial, the Parties stipulated that the request for attorneys’ fees under the UTPCPL would be heard
through post-trial submissions. Trial Tr. vol. 1, 8:6-12. Therefore, the Court does not consider an award of attorneys’
PRT BOA RSIGIS
fees and costs at this time.
aS
23
roto
as informationeaddecuinénts difecenty than AOn-cOnmaSnWabRaoimialon and.datubiants... 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 36
Oe
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
TORT
Mr. Gavin’s estimated repairs for rebuilding the bedroom walls totaled $15,260.00. P-15 J
Cartan Foe
1, Plaintiffis entitled to recover this amount. Mr. Gavin’s proposal included additional options for
Ce
sistering floor joists, installing new shutters, and replacing windows. Id. at [J 1.14-1.16. Plaintiff
is not entitled to recover for these optional items as they were not necessary to complete the repairs
for the deteriorated interior walls.
me, eee
mK
Mr. Gavin’s estimated repairs for rebuilding the wall in the family room totaled
"$35,680.00. Id, at J 2. Plaintiff is entitled to recover this amount. Again, Mr. Gavin's proposal
">
frmetas
included additional options for- shutters and windows, but Plaintiff is not entitled to recover for
rink
these optional items because they were not necessary for the repairs to the deteriorated interior
walls. Id. at ff 2.1-2.2.
Beltite RecthoniatatponDmee/20end :-BhBMpntidential
The Court finds actual damages, therefore, are in the amount of $50,940.00. The repairs
“ft VTE Qe
completed for the deterioration of the interior bedroom and family room walls seem fair and
Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
reasonable. The home was nearly fifty (50) years old and ran its course, but the deterioration in
the interior walls was clearly a material defect known by the Defendants that was not disclosed.
This material defect should have been disclosed and highlighted for Plaintiff in the SDS to allow
’ Plaintiff to discover the problem and any potential solutions. The Court declines to award any
additional damages under the UTPCPL because the actual damages alone are significant.
rats Gdunb,op
My ay
V. FINAL CONCLUSION
In consideration of the evidence, arguments, exhibits, and testimony presented at trial,
which was held before the undersigned from October 6, 2020 through October 8, 2020, along with
eases eR@ckBept: 22503676 >>
the submissions of the Parties thereafter, this Court concludes that the Plaintiff has proven one
RAGED IGAGAS JAA ARIF ER»
material defect that the Defendants failed to disclose on the SDS for which she should recover: the
75" B bila (Rubilpha
deteriorated interior walls in the bedrooms and family room. All other claims were either not
24
SOR
2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 37
material defects and/or were not proven. Plaintiff is entitled to damages in the amount of
This Court’s Verdict and Order consistent with this Decision is being entered on this same
-
Mt
BALD J.
ROBERT
: Oe
$50,940.00 for violations of the RESDL and the UTPCPL.
25
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2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 39
a
eee
FD .
3} s IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
ats CIVIL DIVISION
oee
=e .
282 KATHLEEN NICHOLS-GOULD ;
LLG
4 22
sa5 Plaintiff,
sunty
| . :. |
1
owe :
$a2 ;
$5 v. No, 2018-06816
ees | : |
Sipe CHARLES P, MCDONALD, JR. and :
<8] SUSANNE MCDONALD, hiw :
se Defendants. :
sss
| MEMORANDUM DECISION
see
As This Memorandum Decision addresses Kathleen Nichols-Gould’s (“Plaintiff's”) Post-Trial
Es
a Motion for Attorney’s Fees. For the reasons set forth below, the undersigned grants said Post-
8S ;
E. Rhedpjfenizedeial Syatetep! Perinsylvania: Case Recordsof the Appellaté-and-Trial Courts that require'filing con
Trial Motion and awards $14,838.50 in attorney’s fees and $3,680.80 in costs to Plaintiff in an
pogo th COASHER ULANORE Sy Shem URRE AS Ranned tO REUaabAT ake AppalaegnameaacagZe Bape Mture nin g
Case# 201 8-0681 6-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
appropriate Order to follow.
A. Background
After a three-day bench trial in the above captioned case, the Court issued its Order and
Verdict along with a written Decision on July 1, 2021, in which the Court found for Plaintiff in the
amount of $50,940.00. The Court’s Order stated that “Counsel for Plaintiff may file a Petition for
Attorney’s fees. The Court will schedule a phone conference with Counsel to discuss the process
to be followed conceming same.” On July 10, 2021, Plaintiff filed the instant Post-Trial Motion
seeking Attorney’s Fees pursuant to the Court’s July 1, 2021 Order and the Penn Ivania Unfair
Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. § 201.9.2 (authorizing an
award of reasonable attorney’s fees and costs for violation of the Act).
E-Filed by: Elizabeth Schecter
THIS ORDER/JUDGMENT WAS DOCKETED AND SENT ON 03/08/2022 PURSUANT TO PA. R. C. P. 236.
—- a
2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 40
Te
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
of PiennsylVania~Gase Records o f the-Appeliate and Trial Courts'that require filing confidential information and-docaments differently thar rion-confidential inforindtich’and documént sr
Rot
Alitifoiaeeses ios
B. Attorney’s Fees
Attorney’s fees and costs are a statutory right under the UTPCPL within the sound
discretion of the trial court. 73 P.S. § 201.9.2. The UTPCPL allows for the recovery of
“reasonable” attorney’s fees and “was not intended to provide a claimant, or his a torney, with a
hthiidiinpecinaliéewih¢hegraves
(
windfall or bonanza should he or she be successful.” Boehm v, Riversource Life, 117 A.3d 308,
336 (Pa, Super. 2015) (citations omitted). Therefore, Pennsylvania courts have recognized that
there should be "a sense of proportionality between an award of damages and an award of
attorney's fees [under the UTPCPL]." Richards v. Ameriprise Fin., Inc,, 217 A.3d 854, 868-71
(Pa. Super. 2019) (citing McCauslin v, Reliance Fin. Co., 751 A.2d 683, 686 (Pa. Super. 2000)),
At the same time, however, “the fee-shifting statutory provision of the UTPCPL is designed
Bas
to promote its purpose of punishing and deterring unfair and deceptive business practices and to
RM ie Hi Mm pSOM Mi
encourage experienced attorneys to litigate such cases, even where recovery is uncertain.” Id.Received at Count y of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
(citing Krebs v. United Refining Co. of Pennsylvania, 893 A.2d 776, 788 (Pa. Super. 2006)
85/ ened eceaeGauebtas Backs: Remehatd anion G3) CCZ0R 28a
(citations omitted)). Thus, in considering such an award, the Court may inquire into the time and
labor required, the novelty and difficulty of the case, the customary charge of members of the bar,
the amount involved and the certainty of compensation, among other factors. See Skurnowicz v.
Lucci, 798 A.2d 788, 796 (Pa. Super. 2002) (superseded by statute on other grounds in Milliken
v. Jacono, 60 A.3d 133 (Pa. Super. 2012)).
1. Time and Labor Required.
This case lasted two and one-half years from beginning to end, involved complex issues,
and concerned multiple alleged defects throughout the property (flooded basement, deteriorated
bedroom walls, deteriorated family room walls, defective tile, exterior flooding, exterior masonry,
ase# 2018-0681 6-89 - oligos
igigiel Systena
bie
zabeth Schecter
defective fencing, and exterior flooding). The trial involved three days of testimony, a handful of
a
cea
led by.
fi
ager sacle
reaibyork ents. 0.4 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 41
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
Wein’ Sys terrepf Perinsylvania: Case Records‘of the Appellate and Trial‘Courts that require filirig confidential information"and documents differently than non-confidential information and doctiments.
kethu
bio Avedss
expert witnesses, and several motions in limine. Accordingly, the time and labor required to
1
¥ POS R SR ena ed ASS Restle GGL ahe A OU ENOEAEY NO TEMOLROS 10 8 Cthinee Bia OI Ti Tare iGleinibentifedtotratatis diiageotapliceseith tih provisionsrotd
litigate this case was significant.
Because the counts in this case were tried in a single proceeding, it is difficult to segregate
the amount of time that Plaintiff spent developing each count. Twp. of S. Whitehall v. Karoly,
891 A.2d 780, 785 (Pa. Commw. 2006). Thus, it was Defendants’ burden to establish a basis for
segregating the hours spent on Plaintiff's successful and unsuccessful counts. Id. Like in Karoly,
Defendants presented no evidence by way of affidavit or otherwise to challenge the accuracy and
reasonableness of the hours charged by Plaintiff's counsel. . See id.Accordingly, Defendants have waived the argument that Plaintiff's total claimed attorney’s
fees are inaccurate or unreasonable, and this Court agrees with Plaintiff that she is technically
entitled to recover up to 100% of the 125.75 hours that Plaintiffs counsel spent preparing
Plaintiff's case. See Exhibit 1 to Plaintiff's Post-Trial Motion for Attorney’s Fees. However,
Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
Plaintiff was not ultimately successful with respect to all items of damages claimed. Therefore,
the Court will modify the award of attorney’s fees to 40% of the total amount claimed by Plaintiff
for the reasons set forth in more detail below.
2. Novelty and Difficulty of Case.
Although this case was not tremendously novel, it did involve an interpretation of the
Pennsylvania Real Estate Seller’s Disclosure Law (“RESDL”), 68 Pa.C.S. §§ 730]-7314, and the
UTPCPL, in addition to Plaintiff's contract and common law claims. Furthermore, there were a
number of alleged material defects, and because Plaintiff served as her own general contractor, it
was necessary to hire expert witnesses to summarize the entire project and the costs associated
with each item to be repaired. The case was hotly contested and necessitated extensive discovery
Schecter
si ORISy
E-Fil led by: Elizabeth
BIE Beagrie’ UL
Ipifi mote hed
yet (herprowisionsidfdbe lokamentgic tas
: iameicey 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 42
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
Case-‘Records‘of the Appellatevand Trial Courts that requiré filing confidentialinformation and documents-differently than non-confidential information’and ‘dociiments.
eager
tu ibitoAnedon uid
and several site visits by the parties and expert witnesses. Thus, this case was relatively difficult
a
to litigate.
aaiboae
3. Difficulty of Questions Involved.
The questions involved in this case were also relatively complex, in that there were a
pleat
|
number of overlapping legal issues for the parties and the Court to unpack. Fo r example, the
undersigned questioned the parties on the effect of exculpatory language in the Sel er’s disclosure
ia ddingentspiiste
.
sheet, and its interaction with Plaintiff's statutory rights under the RESDL. See Trial Transcript
"
(“TT”), Vol II, 126:2-8; TT, Vol III, 86:6-25; 87:1-25; 88:1-5.
In addition, the parties briefed the Court on whether defects that were kno wn but thought
hajbetndanetagh
to be rectified or that were caused by age or external factors met the definition of a defect under
the RESDL. See TT, Vol III, 82:18-25; 90:11-23, 97:12-19. Accordingly, the que stions involved
POT
in this case were relatively difficult.
aeRH ase Arp bemtAAOIBIOT A022 aerehiteoHis
Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
wee
4. Skill Required.
This case involved numerous alleged defects, extensive discovery, and the presentation of
multiple witnesses over several days of testimony. The parties were each | represented by
experienced and tenacious counsel. Accordingly, this case required significant skj ll to litigate.
5. Customary. Charges.
The parties stipulated that the reasonable hourly rate is $295 and that no expert testimony
S RANA OC REL 1RNB
would be required on this point. See TT, Vol I, 8:6-12. Accordingly, the Court ac cepts that $295
peslek
is the hourly rate and will issue its award in accordance therewith.
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2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 43
$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
6. Amount in Controversy.
There was well over $1,000,000.00 in controversy in this action.’ See Plaintiffs
Memorandum of Law in Support of Post-Trial Motion for Attorney’s Fees. Thus the amount in
controversy was substantial.
7. Benefits Resulting.
This Court awarded Plaintiff $50,940.00, approximately 20% of Plaintiff's requested relief,
to compensate Plaintiff for Defendants’ deceptive conduct. Thus, Plaintiff received a limited
though demonstrable benefit from Plaintiff's counsel’s services. Accordingly, and as mentioned
above, the Court finds that Plaintiff is entitled to 40% of her total requested attorney’s fees, or
$14,838.50, representing a reasonable and proportionate award for the amount of benefit resulting
to Plaintiff as a result of Plaintiff's counsel’s services.
8. Contingency.
Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee
Plaintiff's counsel declined to elaborate on whether his compensation was contingent or
certain. Nonetheless, the parties stipulated that $295 is the reasonable hourly rate and that
Plaintiff's costs were reasonable. See TT, Vol I, 8:6-12. Thus, the Court’s central focus in
resolving this Motion is the amount of time that Plaintiff's counsel expended and the extent to
a feet Pefinsyivania: Case Records‘of the Appeliate
which the time billed translated into a benefit to Plaintiff.
RARE:
1 RESDL Damages
$241,259.58 cost to repair undisclosed material defects
BP, ERAS
$43,426.22 interest from 4/30/18 at 6% per annum (3 years)
i Elizabeth Schecter
UTPCPL Damages
$729,962.28 3x actual damages as penalty under UTPCPL
E. Spl des) ecndaaick Sus
$TBD attorney’s fees ($295 per hour) and costs under UTPCPL
$TBD expert testimony fees at $150 per hour
peractreCS ARSE UR OR!
i
Preece”
Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee = $0. 00. The filer certifies that this filing complies with the provisions of the Public Access Policy of
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54
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with this Decision.
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Conclusion.
as a result of Plaintiff's counsel’s services.
.
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BY THE COURT:
ROBERT O. BALDI, J.
A.
The Court will issue an appropriate Ofder consistent
In summary, the Court finds that while Plaintiff is technically entitled to} recover up to
time billed is reasonable and proportionate in light of the amount of benefit resulting to Plaintiff
100% of the 125.75 hours billed by Plaintiff's counsel, an award of 40% of the total amount of
2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 44