Opinion
J. A32008/16 No. 1214 EDA 2016 No. 1370 EDA 2016
01-23-2017
LINDSEY ABERTS v. PAUL VERNA Appellant LINDSEY ABERTS Appellant v. PAUL VERNA
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered March 22, 2016
In the Court of Common Pleas of Chester County
Civil Division at No(s): 2014-06705-CT BEFORE: DUBOW, RANSOM AND PLATT, JJ. MEMORANDUM BY DUBOW, J.:
Retired Senior Judge Assigned to the Superior Court.
In these consolidated cross-appeals, Appellant, Paul Verna, appeals from the Judgment entered against him in the Chester County Court of Common Pleas following a bench trial and the denial of his Post-Trial Motion by operation of law. Appellee, Lindsey Aberts, purports to appeal from the trial court's decision not to award her punitive damages and attorney's fees for work performed by her counsel post-trial. After careful review, we affirm.
The relevant facts, as gleaned from the record, are as follows. Appellee and Appellant entered into an agreement of sale of property located at 3364 Upper Valley Road, Parkesburg, Chester County, Pennsylvania (the "Property") on July 10, 2012. Prior to this transfer of ownership, Appellant had purchased the Property from Denise and Paul Charbonnier by way of an agreement of sale dated December 8, 2010. A title company prepared the deed, dated February 10, 2011, transferring the Property from the Charbonniers to Appellant. With respect to this transfer, Denise Charbonnier executed the deed on February 10, 2011, but Paul Charbonnier did not execute it until March 25, 2011. During the delay, on March 17, 2011, Paul Charbonnier obtained an estimate for the installation of a sump pump in the basement of the Property. The Charbonniers did not install a sump pump in the Property prior to its sale to Appellant.
In fact, neither the Charbonniers, nor Appellant or his agent William Reynolds, installed a sump pump or performed any other water infiltration remediation prior Appellee purchasing the property.
Settlement on the Property between Appellant and the Charbonniers occurred through an agent for Appellant, William Reynolds ("Reynolds"), who signed on behalf of Appellant at settlement on March 25, 2011. Appellant purchased the Property from the Charbonniers to provide Reynolds, his then-employee, a place to live. Reynolds was the sole occupant of the Property during the time between Appellant's purchase of the Property from the Charbonniers and its sale to Appellee. Appellant testified that he never visited the Property at any time.
Appellee purchased the Property from Appellant by deed recorded on September 7, 2012. Prior to the sale, Reynolds completed and executed a "Seller's Property Disclosure Statement" on Appellant's behalf. This Statement affirmatively represented that the Property did not have a sump pump and that the seller was unaware of any water infiltration in the basement or of any attempt to control any basement water problems. Neither Appellant nor Reynolds disclosed to Appellee the existence of any basement water problems, or the March 17, 2011 sump pump installation estimate.
Appellant, although an accountant by trade, has owned approximately 24 properties in the last 15 years, and has transferred his ownership of approximately 12 properties within the last 10 years. Reynolds worked for Appellant for approximately six years as the superintendent of Appellant's second business, a site construction company.
In October 2012, and again in August 2013, Appellant experienced water infiltration damage requiring repairs in the basement of the Property. On April 30, 2014, and June 12, 2014, heavy rain flooded the entire basement of the Property, depositing standing water in the basement and causing substantial damage. Appellee then obtained inspections and estimates to remediate and repair the damage. Coincidentally, the remediation company that had prepared the March 17, 2011 sump pump estimate also provided Appellee with a remediation estimate. Ultimately, the remediation of the damage caused by the flooding cost Appellee $14,538.85.
On July 16, 2014, Appellee filed a Complaint raising claims that Appellant failed to disclose latent defects in the Property, misrepresented the condition of the Property, and violated the Real Estate Seller Disclosure Law ("RESDL"), 67 Pa.C.S. §§ 7301-7315, and the Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 P.S. §§ 201-1 - 201-9.3.2. The parties proceeded to arbitration, after which a panel of arbitrators found in favor of Appellee. Appellant appealed to the Court of Common Pleas for a trial de novo
The trial court held a one-day trial on August 10, 2015, at which Appellee and Appellant testified. Following its consideration of the evidence, including, inter alia, the parties' testimony; the March 17, 2011 sump pump installation estimate; the February 11, 2011 deed transferring the Property to Appellant signed on February 11, 2011, by Denise Charbonnier and on March 25, 2011, by Paul Charbonnier; and the July 6, 2012 Seller's Property Disclosure Statement signed by Appellant, the trial court entered a verdict of $14,538.85 in favor of Appellee and against Appellant on all counts. The court also awarded Appellee counsel fees of $5,867.50.
Neither party offered the testimony of the Charbonniers or Reynolds.
As noted supra , Reynolds completed and executed the Seller's Property Disclosure Statement on Appellant's behalf. Reynolds affirmatively represented in the Statement that the Property did not have a sump pump and that the seller was unaware of any water infiltration in the basement or of any attempt to control any basement water problems. --------
In reaching its decision, the trial court concluded that the delay that occurred between Denise Charbonnier's February 10, 2011 execution of the deed transferring the Property and the March 25, 2011 execution of the deed by Paul Charbonnier evidenced a purposeful delay in the conveyance of the Property. The trial court attributed the delay to the discovery by Reynolds of a water infiltration problem in the basement. The trial court also determined that prior to March 25, 2011, Appellant knew of a water infiltration issue at the Property through the knowledge acquired by his agent, William Reynolds, during the Property conveyance process with the Charbonniers.
On October 30, 2015, Appellant filed a Post-Trial Motion for Judgment Notwithstanding the Verdict or a New Trial, in which Appellant argued that (1) the trial court erred in finding that Appellee presented sufficient evidence that Reynolds knew about the sump pump installation estimate and imputing that knowledge to Appellant; and (2) the RESDL provides only for recovery of actual damages, thus the trial court erred in awarding Appellee attorney's fees. On November 9, 2015, Appellee also filed a Post-Trial Motion alleging that the trial court erred in not awarding her punitive damages as permitted by the UTPCPL.
On January 28, 2016, the court held oral argument on the Motions. Subsequent to the court conducting oral argument, all Post-Trial Motions were denied by operation of law. On March 22, 2016, Appellee filed a Praecipe for Entry of Judgment, and the Prothonotary entered Judgment in her favor.
Appellant filed a timely Notice of Appeal on April 13, 2016. On April 27, 2016, Appellee filed a timely cross-appeal. Appellant, Appellee, and the trial court all complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. Whether the [t]rial [c]ourt's verdict in the [Appellee's] favor was erroneous and an abuse of discretion, given the lack of evidence showing [Appellant's] knowledge of water infiltration into the Property prior to the sale of the Property to [Appellee].Appellant's Brief at 4.
2. Whether the [t]rial [c]ourt's award of attorney[']s fees was in error given the lack of any evidence of any fraud on the part of [Appellant].
Appellee raised the following issues in her Pa.R.A.P. 1925(b) statement:
1. [The trial court erred when i]t did not assess sanction damages authorized by 73 P.S. 201-9.2 despite ample
evidence of fraudulent conduct including knowledge of water infiltration from actual pre[-]sale inspection.Appellee's Pa.R.A.P. 1925(b) Statement, 5/11/16.
2. The [c]ourt did not reassess amount of attorney fees for post[-]verdict costs to client and should do so when the appeal is denied because the legal fees are continuing.
3. The [c]ourt erred by utilizing a punitive damages analysis and therefore declining to double or treble damages where our Supreme Court has held that the purposes of the [UTPCPL] are best served when the [c]ourt is not "closely constrained" to punitive damages analysis. It held that the [c]ourt is free to exercise its discretion to closely address shady commercial practices because they are invariably intentional, extract benefits from victims by unfair advantage[,] and need to be discouraged. Schwartz v. Rockey , 932 A.2d 885 (Pa. 2007).
4. The [c]ourt must assess sanction damages to make the risk of loss from the choice to conceal the defect greater than the cost of disclosure and cure before sale to insure that sellers' conduct conforms to the law.
Appellee, however, did not re-raise these issues in her appellate brief. In fact, her brief contains no Statement of Questions Involved. Moreover, in the Argument section of her brief, she has failed to present any independent argument at all, including argument in support of the errors she alleged in her Rule 1925(b) Statement. Accordingly, we find that Appellee abandoned her issues on appeal and conclude that they are waived.
Appellant's first issue on appeal essentially challenges the sufficiency of Appellee's evidence that Appellant had constructive knowledge of water infiltration prior to the sale of the property to Appellee. Appellant does not dispute that Reynolds was Appellant's agent. However, Appellant argues that Appellee did not present any evidence that Reynolds knew about the sump pump installation estimate obtained by the Charbonniers prior to Appellant purchasing the property from them. Appellant's Brief at 8. He claims that the court's inference that Reynolds knew about a water infiltration problem in the Property's basement solely because of the delay in the Charbonniers' execution of the deed conveying the Property to Appellant, and the subsequent imputation of that knowledge to Appellant, was unreasonable. Id. at 8-9.
Our standard of review of a trial court's denial of a Motion for Judgment Notwithstanding the Verdict is as follows:
Whether, when reading the record in the light most favorable to the verdict winner and granting that party every favorable inference therefrom, there was sufficient competent evidence to sustain the verdict. Questions of credibility and conflicts in the evidence are for the trial court to resolve and the reviewing court should not reweigh the evidence. Absent an abuse of discretion, the trial court's determination will not be disturbed.Holt v. Navarro , 932 A.2d 915, 919 (Pa. Super. 2007) (quotation omitted).
Furthermore:
There are two bases upon which a JNOV can be entered: one, the movant is entitled to judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, a court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.Id. (quotation omitted). "When reviewing a trial court's denial of a [M]otion for JNOV, we must consider all of the evidence admitted to decide if there was sufficient competent evidence to sustain the verdict. Concerning any questions of law, our scope of review is plenary. Concerning questions of credibility and weight accorded the evidence at trial, we will not substitute our judgment for that of the finder of fact. A JNOV should be entered only in a clear case." Id. (quotation omitted).
The trier of fact must reach its verdict on more than mere speculation or conjecture; there must be evidence upon which its decision is logically based. Smith v. Bell Tel. Co. of Pa. 153 A.2d 477, 479 (Pa. 1959). The trier of fact may draw reasonable inferences based on the evidence and its own knowledge and experience. Id. Circumstantial evidence is admissible, and even sufficient, to prove an element of a cause of action. Id. at 480. However, when a plaintiff relies primarily or solely upon circumstantial evidence and inferences reasonably deducible from such evidence, the evidence presented by the plaintiff must be "so preponderate in favor of that conclusion as to outweigh in the mind of the fact-finder any other evidence and reasonable inferences therefrom which are inconsistent therewith." Id.
In the instant matter, the trial court based its verdict in favor of Appellee on disclosures made by Reynolds in the Seller's Property Disclosure Statement in accordance with the RESDL. See Trial Ct. Op., 6/27/16, at 4. The RESDL provides that "[a]ny 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[.]" 68 Pa.C.S. § 7303. The trial court concluded from the circumstantial evidence presented by Appellee that Appellant knew about, but failed to disclose to Appellee, a material defect, i.e, a known history of water infiltration in the Property. See Trial Ct. Op. at 4. We agree.
With respect to its conclusion that Appellant was aware of the water infiltration problem in the basement of the Property, the trial court opined as follows:
There is ample evidence in the record to support the reasonable inference that Mr. Reynolds had actual knowledge of the water infiltration problem and that his knowledge was imputed to Appellant. Specifically, the record evidences that [Appellee] sustained her burden of proof under the preponderance of the evidence standard. It is uncontroverted that the conveyance of the Property from the Charbonniers to [Appellant] (through Mr. Reynolds) was intentionally delayed for more than one month. The delay is evidenced by the deed transferring the Property from the Charbonniers to Defendant that was prepared by the title company on February 10, 2011. The deed was executed by Mr. Charbonnier approximately 44 days after Mrs. Charbonnier. It is unrefuted that[,] during the delay in Closing, Mr. Charbonnier obtained an estimate for the installation of a sump pump at the property. Although an estimate for a sump pump is not conclusive of a history of water infiltration, common sense dictates that Mr. Charbonnier would not have delayed Closing and obtained the estimate if no water infiltration problem existed that could be addressed by the installation of a sump pump. No alternative explanation for the delay in Closing was presented at trial. Mr. Reynolds, acting as [Appellant's] agent would have had knowledge of the delay
in closing. Due to the proximity of the sump pump estimate and Closing, it was reasonable for the fact-finder to infer that [Appellant] would have been advised of the delay by his bank, Mr. Reynolds, or some other party associated with the transaction. Even if [Appellant] was not informed, his agent, Mr. Reynolds, was in possession of that information as of the Chrabonnier Closing on March 25, 2011[,] and the [Appellee's] closing in 2012. Likewise, it is clear that [Appellee] was never informed of the water infiltration issue or estimate by [Appellant]. Rather, [Appellant] actively omitted the issue from the Seller's Disclosure Statement completed by Mr. Reynolds. As a result of the concealment[, Appellee] suffered damages. The greater weight of the evidence at trial tips the scale in favor of [Appellee]. Accordingly, the evidence in this case is sufficient to return a Verdict in favor of [Appellee] on all claims.Trial Ct. Op. at 6-7.
Our review of the facts as set forth supra , indicates that, based on the evidence, including circumstantial evidence, presented by Appellee at trial, the trial court reasonably concluded that there was or had been a water infiltration problem at the time of the sale of the Property to Appellant; that Appellant's agent, and therefore Appellant, had knowledge of the water infiltration issue at the Property; that Appellant concealed this information from Appellee; and that, as a result of the concealment, Appellee suffered damages. Accordingly, Appellant's sufficiency argument lacks merit.
In his second issue, Appellant claims that the trial court erred in awarding Appellee attorney's fees. Appellant notes that, of the claims raised by Appellee, only the UTPCPL, and not the RESDL, provide for an award of attorney's fees. However, in order to recover attorney's fees pursuant to the UTPCPL, Appellant argues, relying on Feeney v. Disston Manor Pers. Care Home , Inc., 849 A.2d 590 (Pa. Super. 2001), that Appellee was required to prove statutory fraud by clear and convincing evidence. Since the trial court applied a "preponderance of the evidence" standard of proof, rather than a heightened "clear and convincing" standard of proof, Appellant claims that Appellee failed to establish a right to relief under the UTPCPL. Appellant's Brief at 4. Appellant also avers that as an "innocent party himself,"—a victim of Reynolds' deception—awarding Appellee attorney's fees is inconsistent with the UTPCPL's purpose. Id. at 5.
Following the trial in this matter, the trial court concluded that Appellee was entitled to attorney's fees pursuant to the UTPCPL. See Trial Ct. Op. at 7. We review this decision for an abuse of discretion. Neal v. Bavarian Motors , Inc., 882 A.2d 1022, 1029 (Pa. Super. 2005).
The UTPCPL provides a private right of action for anyone who "suffers any ascertainable loss of money or property" as a result of "an unlawful method, act or practice." 73 P.S. § 201-9.2. Section 201-2(4) lists twenty enumerated practices which constitute actionable "unfair methods of competition" or "unfair or deceptive acts or practices," including a catch-all provision proscribing "fraudulent or deceptive conduct which creates a likelihood of confusion or misunderstanding." 73 P.S. § 201-2(4).
Additionally, we point out that:
The UTPCPL is Pennsylvania's consumer protection law and seeks to prevent unfair methods of competition and unfair
or deceptive acts or practices in the conduct of any trade or commerce. The purpose of the UTPCPL is to protect the public from unfair or deceptive business practices. Our Supreme Court has stated courts should liberally construe the UTPCPL in order to effect the legislative goal of consumer protection. The UTPCPL provides a private right of action for anyone who suffers any ascertainable loss of money or property as a result of an unlawful method, act or practice.Fazio v. Guardian Life Ins. Co. of America , 62 A.3d 396, 405 (Pa. Super. 2012) (quotation omitted). "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).
In reviewing this allegation of error, the trial court concluded that Appellant's reliance on Feeney , supra , was misplaced. Based on our review of the record, the arguments presented by the parties, and the relevant case law and statutes, we agree. The trial court's Opinion addressing Appellant's claim, and the applicable law, is thorough and well-reasoned. See Trial Ct. Op. at 8-10 (concluding that, pursuant to the holding in Boehm v. Riversource Life Ins. Co., 117 A.3d 308, 321 (Pa. Super. 2015), the preponderance of the evidence standard applies to fraud claims brought under the catch-all provision of the UTPCPL). Accordingly, we adopt that analysis as our own, and conclude that the trial court did not abuse its discretion in awarding Appellee attorney's fees. Thus, Appellant is not entitled to relief on this issue.
Judgment affirmed. The parties are directed to attach a copy of the trial court's June 27, 2016 Opinion in the event of further proceedings. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/23/2017
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