J-S08032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 OGONTZ PLAZA PARTNERS, LP,               :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                     Appellant            :
                                          :
                                          :
               v.                         :
                                          :
                                          :
 HAINES EASTBURN STENTON                  :   No. 1182 EDA 2018
 CORPORATION                              :

              Appeal from the Order Entered March 20, 2018,
    In the Court of Common Pleas of Philadelphia County Civil Division at
                   No(s): January Term, 2017 No. 01266


BEFORE:      BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                          FILED MAY 17, 2019

      Plaintiff/Appellant, Ogontz Plaza Partners, LP, appeals from the order of

the Court of Common Pleas of Philadelphia County—Commerce Program,

sustaining    Defendant/Appellee’s   preliminary   objections   and   dismissing

Appellant’s complaint with prejudice. We affirm.

      The trial court sets forth the pertinent facts and procedural history as

follows:

      This dispute follows sale and assignment of commercial property
      in the West Oak Lane neighborhood of Philadelphia. The property
      in litigation is Suite D at 7175 Ogontz Avenue. A portion of the
      building has been sold by [Defendant/Appellee] Haines Eastburn
      Stenton Corporation (“HESC”) to non-party buyer City View
      Commercial, LLC (“CityView”), which then, before closing,
      assigned all its ownership interests in the transaction to
      [Assignee/Plaintiff/Appellant]   Ogontz   Plaza  Partners,    LP
      (“Ogontz”).



____________________________________
* Former Justice specially assigned to the Superior Court.
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     Ogontz claims HESC breached its agreement of sale with CityView
     and argues this breach prejudices Ogontz as CityView’s assignee.

     Ogontz claims in particular that Suite D at 7175 Ogontz Avenue
     was included in a commercial Rent Roll incorporated in the original
     agreement of sale but not included in the final deed.

     Ogontz also claims HESC breached the agreement of sale by
     failing to keep a common area inside 7175 Ogontz in good order
     and repair.

                                    ***

     STATEMENT OF FACTS

     [Seller/Defendant/Appellee] HESC and [nonparty] buyer CityView
     signed an Agreement for the Purchase and Sale of Real Estate
     (“Agreement”)      on    an    unknown      date.[]      Though
     [Assignee/Plaintiff/Appellant] Ogontz was not a party to the
     Agreement, Ogontz avers it acquired Suite D at 7175 Ogontz
     Avenue and other properties at a closing on January 12, 2016.3 A
     deed transferring the property from HESC to Ogontz is predated
     December 28, 2015, but the deed does not mention Suite D.


     3 See Amended Complaint. No averment is made on the date of
     the Agreement and the copy of the Agreement attached as Exhibit
     B to the Amended Complaint also fails to include a date, other
     than one associated with the signature of an agent of HESC on
     October 9, 2015.


     The Agreement lists the following properties: (1) 7101-63 Ogontz
     Avenue and (2) “Units C-3 and C-4 of that condominium located
     at 7169-7171, 7175 Ogontz Avenue.”[] The commercial Rent Roll
     attached to the Amended Complaint at Exhibit “14(j)” [sic]
     mentions Suite D 7175 Ogontz as [a] unit with a tenant whose
     lease expired on April 1, 2017.


     PROCEDURAL

     [Assignee/Plaintiff/Appellant] Ogontz commenced suit on January
     10, 2017 by praecipe to issue writ of summons. Ogontz then filed

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      a complaint on June 1, 2017 and an amended complaint on July
      17, 2017. [Defendant/Appellee] HESC filed preliminary objections
      on August 22, 2017. Despite [the court granting] four stipulations
      giving    Ogontz     extensions     of     time      to     answer
      [Defendant/Appellee’s] preliminary objections, [Plaintiff/Appellant
      Ogontz] never responded.

                                         ***

      At preliminary objection, [the trial court] sustained and dismissed
      with prejudice because Ogontz’s amended complaint was fatally
      vague. Deciphering Ogontz’s two breach of contract counts was
      not helped by its repeated failure to respond to HESC’s preliminary
      objections.[]

Trial Court Opinion, filed 9/6/18, at 1-3.

      Plaintiff/Appellant Ogontz filed a Motion to Reconsider asserting that the

court’s order was premature in light of ongoing discussions between Ogontz’s

replacement counsel and HESC’s counsel aimed at “identify[ing] more

specifically   the   nature   of   the   dispute   and   the   discrepancy   in   the

documentation, and to rework the conveyance documents.” Ogontz’s Motion

to Reconsider, 3/29/18, at 2.       According to the motion, efforts to resolve

disagreements pertaining to the scope of the conveyance had been ongoing

but were delayed because of difficulties in conducting necessary research into

the condominium’s formation history, caused in part by a past fire that

allegedly destroyed architectural drawings of the property in question.

Motion, at 2-3.

      “In retrospect,” Ogontz offered, “rather than filing stipulations and not

addressing the pending preliminary objections, counsel for the Plaintiff

acknowledges that procedurally a Praecipe to Settle, Discontinue and End



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without prejudice should have been filed, thereby removing the matter from

the Court’s docket while the attempts to amicably resolve the matter remained

ongoing.” Motion, at 3. Ogontz, therefore, requested that the court vacate

the Order dismissing the matter with prejudice in favor of permitting Ogontz

to file a Praecipe to Settle, Discontinue, and End, without prejudice. On April

18, 2018, the trial court denied Ogontz’s Motion to Reconsider. This timely

appeal followed.

      Plaintiff/Appellant Ogontz presents the following questions for review:


          1. [Did] the trial court [err] as a matter of law in sustaining
             the preliminary objections raised by Defendant [HESC]
             under Pa.R.C.P. 1028(a)(4) (Demurrer) by failing to
             consider all well-pleaded material facts, misperceiving well-
             pleaded material facts, failing to consider and accept as
             true all inferences fairly deductible therefrom, and
             erroneously concluding that there were no facts that would
             entitle Plaintiff to relief[?]

          2. [Did the trial court], in sustaining the preliminary objections
             of Defendant under other paragraphs of Pa.R.C.P. 1028,
             [err] by concluding that Plaintiff “will not state a viable
             claim,” and [err] by issuing an order which failed to grant
             leave to file a Second Amended Complaint[?]


          3. [Did] the trial court [err] in dismissing the Amended
             Complaint with prejudice[?]

Appellant’s brief, at 2.

      Appellant Ogontz's issues coalesce to challenge the trial court's order

sustaining Appellee HESC’s preliminary objections. Our standard of review of

this matter is well-settled:



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      In reviewing a trial court's grant of preliminary objections, the
      standard of review is de novo and the scope of review is plenary.
      The salient facts are derived solely from the complaint and
      pursuant to that standard of review, the court accepts all well-
      pleaded material facts in the complaint, and all inferences
      reasonably deduced therefrom must be accepted as true.

      In determining whether the trial court properly sustained
      preliminary objections, the appellate court must examine the
      averments in the complaint, together with the documents and
      exhibits attached thereto, in order to evaluate the sufficiency of
      the facts averred. The impetus of our inquiry is to determine the
      legal sufficiency of the complaint and whether the pleading would
      permit recovery if ultimately proven. This Court will reverse the
      trial court's decision regarding preliminary objections only where
      there has been an error of law or abuse of discretion. When
      sustaining the trial court's ruling will result in the denial of claim
      or a dismissal of suit, preliminary objections will be sustained only
      where the case is free and clear of doubt.

Jones v. Board of Directors of Valor Credit Union, 169 A.3d 632, 635

(Pa.Super. 2017) (citations omitted).     With respect to preliminary objections

for insufficient specificity in a pleading, this Court has stated that:

      [t]he pertinent question under [Pennsylvania] Rule [of Civil
      Procedure] 1028(a)(3) is whether the complaint is sufficiently
      clear to enable the defendant to prepare his defense, or whether
      the plaintiff's complaint informs the defendant with accuracy and
      completeness of the specific basis on which recovery is sought so
      that he may know without question upon what grounds to make
      his defense.

Rambo v. Greene, 906 A.2d 1232, 1236 (Pa.Super. 2006) (internal

quotations omitted).

      “Pennsylvania is a fact-pleading state; a complaint must not only give

the defendant notice of what the plaintiff's claim is and the grounds upon

which it rests, but the complaint must also formulate the issues by

summarizing those facts essential to support the claim.” Lerner v. Lerner,

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954 A.2d 1229, 1235 (Pa.Super. 2008). The pleadings standards set forth in

Pa.R.C.P. 1019 specifically

      require the pleader to disclose the material facts sufficient to
      enable the adverse party to prepare his case. A complaint
      therefore must do more than give the defendant fair notice of what
      the plaintiff's claim is and the grounds upon which it rests. It
      should formulate the issues by fully summarizing the material
      facts. Material facts are ultimate facts, i.e. those facts essential
      to support the claim. Evidence from which such facts may be
      inferred not only need not but should not be alleged.... Allegations
      will withstand challenge under [Rule] 1019(a) if (1) they contain
      averments of all of the facts the plaintiff will eventually have to
      prove in order to recover, and (2) they are sufficiently specific so
      as to enable defendant to prepare his defense.

Id. at 1235–36 (quoting Baker v. Rangos, 324 A.2d 498, 505–06 (Pa.Super.

1974)).

      A review of Ogontz’s Amended Complaint shows, first, that it satisfied

its obligation to assert ultimate facts that it possessed standing to pursue the

present claim. As such, we disagree with the learned trial court to the extent

it concludes “Ogontz made no averments at all that Buyer complied with [the

Purchase Agreement’s assignment provisions],” to the demise of Ogontz’s

claim of standing as an assignee to CityView. See Pa.R.A.P. 1925(a) Opinion,

at 3 n.6.

      In fact, the Amended Complaint avers, “Ogontz Plaza made this

purchase as the assignee of CityView pursuant to an Agreement for the

Purchase and Sale of Real Estate (the “Agreement”) entered into between

CityView and HESC Corp. . . . Said assignment being oral and pursuant to

§17(i) of the Agreement.” Amended Complaint, ¶ 3. Section 17(i) of the


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Agreement of Sale specifies that “Buyer shall be entitled to, without Seller’s

prior consent, assign this Agreement to an entity formed by Buyer or its

principals prior to Closing. . . .”

      Therefore, we find Ogontz sufficiently averred ultimate facts that it

became City View’s assignee prior to closing so as to, at the very least, create

a doubt regarding its standing to assert rights under the Agreement.

Sustaining of preliminary objections on this basis, therefore, was error.

      An alternative basis upon which the trial court sustained preliminary

objections, however, centered on Ogontz’s claim that HESC breached its

contractual duty to deliver the “Property” as described in Section 14(j) of the

Agreement, entitled “Seller’s Representations and Warranties.”       In Section

14(j), HESC represents that Exhibit 14(j) of the Agreement sets forth a “Rent

Roll” listing condominium units within the Property and the corresponding

rents charged to their respective tenants. Among the units listed is the unit

at issue in the present appeal, 7175 Ogontz Ave, Suite D, consisting of 1200

square feet.

      In its Amended Petition, Ogontz claims Section 14(j) and Exhibit 14(j)

of the Agreement of Sale conferred upon it a contractual right to receive Suite

D as part of the condominium “Property” it purchased.        Ogontz, however,

acknowledges that a discrepancy exists between the Exhibit 14(j) Rent Roll

and the more specific, legal description of the actual property to be conveyed

as it appeared on Page 1, Section A of the Agreement of Sale in the Agreement




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of Sale, and again in the Deed. Specifically, the latter descriptions do not

reference 7175 Ogontz Avenue, Suite D.1

        Examining the Amended Complaint and its attached documents with

respect to the scope of the Property conveyed, we find it undeniable that the

primary and specific description of the property appearing in the Agreement

of Sale did not include Suite D, thus placing Ogontz on notice as to the entirety

of the subject Property. Moreover, this clear description aligned precisely with

the description of the conveyance appearing in the Deed, itself. If parties who

can read do not “read a deed put before [them] for execution, [they are] guilty

of supine negligence, which is not the subject of protection either in equity or

at law.” In re LaRocca's Trust Estate, 192 A.2d 409, 414.

        To the extent Ogontz now argues that the Agreement’s Section 14

created sufficient doubt regarding whether the parties intended to include

Suite D in the Deed so as to survive the preliminary objection stage, we must

disagree.      This is so because the Amended Complaint fails to articulate

ultimate facts that would bring this case outside the scope of the general rule

calling for merger of a contract in a subsequently executed deed:

____________________________________________


1   The first paragraph of the Agreement of Sale provides:

        A. Buyer and Seller have entered into a Letter of Intent with
           respect to the Ogontz Plaza, consisting of certain real property
           located at Ogontz Plaza located at 7101-63 Ogontz Avenue, as
           well as Units C-3 and C-4 of that condominium located at 7169-
           7171, 7175 Ogontz Avenue in Philadelphia, Pennsylvania, as
           more particularly described on the attached hereto as Exhibit
           A (the “Property”).

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J-S08032-19


     “The general rule, in the absence of fraud or mistake, and of an
     intent to the contrary, is that an antecedent contract for the
     purchase of land is merged in the deed...upon the delivery and
     acceptance of the deed, there exists a ‘prima facie presumption’
     of merger.” Dobkin v. Landsberg, 273 Pa. 174, 182, 116 A.
     814, 817 (1922) (internal citation and quotation marks omitted).
     The law presumes that delivery and acceptance of a deed
     consummates the prior agreement and precludes the parties
     “from looking behind the conveyance to subjects of strife
     suggested by their previous...contracts”; this preclusion applies to
     all parties in interest, even third parties. Id. at 185, 116 A. at
     818. “When a deed has been executed in pursuance of a prior
     agreement, it is prima facie evidence the latter has so merged
     that no action could be maintained on any of its covenants....” Id.
     at 186, 116 A. at 818.

     “Merger is said to be the rule, except when the intention of the
     parties is otherwise. . . .

     …

     The intention of the parties is evidenced by the attending
     circumstances of each transaction. Dobkin, supra. “Intention of
     the parties...may be shown by their declarations, acts, or conduct
     at the time of execution of the agreement in question or from the
     terms of the writing itself.” Dick v. McWilliams, 291 Pa. 165,
     169, 139 A. 745, 746 (1927).

     “While the general rule undoubtedly is that, if the agreement is
     one for sale of lands, it will be presumed, in absence of an intent
     to the contrary, the contract of purchase is merged in the deed. .
     . .”

     …

     But the prima facie presumption of the law arising from the
     [delivery and] acceptance of a deed is that it is the execution of
     the whole contract. ... [Y]et the general rule is that a purchase is
     consummated by the conveyance; after which the parties have no
     recourse to each other except for imposition or fraud, or upon the
     covenants in the deed.” Dobkin, supra at 184, 116 A. at 817.
     Thus, “to rebut the legal presumption [of merger], the intention
     to the contrary must be clear and manifest.” Id. at 185, 116 A. at
     818.

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In re Mihordin, 162 A.3d 1166, 1171–72 (Pa.Super. 2017).

       Here, the Amended Complaint failed to aver facts making clear and

manifest the parties’ shared intent to convey Suite D to Ogontz despite the

absence of any reference to Suite D in either the specific description of the

subject property in the Agreement of Sale or in the subsequently executed

Deed. For this reason, we agree with the trial court’s apparent application of

the general rule that the property description in the Deed controls.2

Accordingly, we find no error with the trial court’s order sustaining HESC’s

preliminary objections to Ogontz’s breach of contract claim raised in Count I

of the Amended Complaint.

       Likewise, we find the trial court properly determined that Count II of the

Amended Complaint provided Ogontz with no opportunity for relief.

Specifically, Count II averred that HESC breached its contractual duty to

provide Ogontz with access to utilities, alarm, and sprinkler system located in

a portion of the Property’s basement not owned by Ogontz Plaza, but part of

the common area of the Ogontz Condominium.”           The Amended Complaint,

however, refers to no provision in the Agreement to support a legal cause of

action in contract in this respect. Accordingly, we find no error with the order

sustaining preliminary objections on Count II.

       For the foregoing reasons, we affirm the order entered below.

____________________________________________


2 In this regard, we note with approval the trial court’s observation that an
action sounding in property law would represent the appropriate means by
which to seek a remedy.

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     Order affirmed.

      P.J.E. Bender joins the Memorandum.

     Judge Kunselman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/19




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