J-A12025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JEROME C. DEUTSCH                        :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 IMPERIAL REALTY APPRAISAL LLC,           :   No. 3762 EDA 2017
 KAREN E. SANDS AND JAMES E.              :
 BAHNICK, MAI, SRA                        :

           Appeal from the Judgment Entered December 27, 2017
           In the Court of Common Pleas of Northampton County
                Civil Division at No(s): C-48-CV-2014-05042


BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                                 FILED JULY 11, 2018

      Jerome C. Deutsch appeals from the judgment entered December 27,

2017, in the Court of Common Pleas of Northampton County, following the

denial of post-trial motions. In May, 2014, Deutsch initiated the present action

for breach of contract and negligence against appellees/defendants, Imperial

Realty Appraisal, LLC, Karen E. Sands, and James E. Bahnick, MAI, SRA

(collectively, Appraisers). Deutsch claims Appraisers are liable for inaccurate

property appraisals performed by Sands in connection with an earlier partition

action that Deutsch brought against Eric J. Bodish, the co-owner of the

property. On June 12, 2017, the trial court conducted a non-jury trial in the
J-A12025-18



present matter.1 Prior to trial, Appraisers, filed a Motion in limine to Preclude

Evidence and Testimony Regarding the Reasonableness and Appropriateness

of the Pertinent Appraisals Performed by Karen Sands.2 By order entered July

31, 2017, the trial court granted Appraisers’ motion in limine, and concluded

the issues presented in the instant action were previously litigated and decided

in the partition action. Deutsch contends (1) Certified Real Estate Appraiser

Karen E. Sands lacked the necessary licensure and legal authority to

independently perform appraisals of non-residential property without the

statutorily required supervision of Certified General Appraiser James E.

Bahnick and, therefore, committed negligence per se, (2) the trial court’s July

31, 2017 order was not supported by competent evidence, and (3) the trial

court’s July 31, 2017 order was premised on an error of law. See Deutsch’s

Brief at 6-7. Based upon the following, we affirm.

       The trial judge, the Honorable Emil Giordano, has aptly summarized the

facts of this case, as follows:

             Jerome C. Deutsch, Plaintiff, purchased real property in a
       partnership with his colleague, Eric Bodish (“Bodish”), in

____________________________________________


1  We note the transcript of the June 12, 2017 non-jury trial reflects that
counsel for Deutsch proposed “that we introduce into evidence factual matters
and evidence and the appraisals by stipulation; and that we not have to go to
live testimony[,]” and the trial judge agreed.       N.T., 6/12/2017, at 4.
Therefore, no witnesses were presented at the trial.

2 Appraisers’ motion in limine was before the trial court at the time of the trial.
See N.T., 6/12/2017, at 19 (trial judge noting he “only just got” the motion
in limine). However, the motion in limine was not entered on the docket until
January 5, 2018, after this appeal had been filed.

                                           -2-
J-A12025-18


     September 2007. Pursuant to the Lehigh Township Zoning Code,
     the property was zoned Agricultural/Rural Residential. The
     property included a 158-acre parcel of land comprised of four
     tracts. The property further included a farmhouse in excess of
     3,000 square feet, as well as other out-buildings. [Deutsch] and
     Bodish purchased the property for a price of $1.7 million at private
     auction. In exchange for a loan of $1.2 million, Jim Thorpe
     National Bank (“the Bank”) agreed to take a mortgage from the
     partners. However, the loan was in reliance on an August 23,
     20[07] appraisal conducted by Vincent F. Gilotti (“Gilotti”).
     Following the appraisal, Gilotti valued the property at $1.817
     million.

           Shortly into the co-ownership agreement, [Deutsch]
     expressed to Bodish his desire to terminate the partnership.
     However, Bodish was not readily in agreement. Therefore,
     [Deutsch] filed a partition action against Bodish in the Court of
     Common Pleas for Northampton County. On January 13, 2012,
     following some level of active litigation, the parties appeared
     before the Honorable Paula A. Roscioli to announce an agreement
     to settle the case. Subject to this settlement, the parties agreed
     to divide the four tracts of land and to exchange monetary
     compensation to be determined pursuant to an appraisal. The
     parties further agreed to request that the Bank, as mortgage
     holder, retain the services of an appraiser to provide a valuation
     of the properties and to indicate an appropriate “dividing line” by
     which a calculation of the monies owed by one partner to the other
     could be determined.

            Subsequent to this agreement, the Bank contacted Gilotti,
     the original appraiser, to request appraisal services. However,
     Gilotti was determined to be unavailable. Resultantly, the Bank
     contacted Defendant Imperial (“Imperial”) to request appraisal
     services. The Bank then entered into a contractual agreement with
     Imperial whereby Defendant James Bahnick (“Defendant
     Bahnick”) assigned the appraisal task to one of his staff
     appraisers, Defendant Karen Sands (“Defendant Sands”).
     Pursuant to the contract, Sands performed the appraisal valuing
     the property at $1.2 million. Further, due to the manner in which
     Plaintiff and Bodish agreed to divide the property, the net effect
     of Sands’ appraisal resulted in the requirement that [Deutsch] pay
     Bodish a sum in excess of $108,000. However, [Deutsch] disputed
     Sands’ appraisal and reneged on the settlement, causing Bodish
     to file a Motion to Enforce the Settlement. Subsequently,

                                    -3-
J-A12025-18


     [Deutsch] retained the services of Raymond Geiger and William
     Stoerrle to appraise the property.

            Upon determination that the parties would be unable to
     agree to terms that would resolve their dispute, a non-jury trial
     was held before Judge Roscioli on the partition action on
     December 18, 2012. Judge Roscioli explained her finding that
     Sands’ appraisal was reasonable and appropriate by way of an
     Opinion and Order issued on or about December 27, 2012.
     Pursuant to Judge Roscioli’s Order, [Deutsch] paid Bodish and the
     partition action came to a close.

           [Deutsch] initiated the instant action by filing a complaint
     on May 29, 2014. On June 12, 2017, the parties appeared before
     this Court for a non-jury trial. Prior to trial, Defendants filed a
     Motion in limine to Preclude Evidence and Testimony Regarding
     the Reasonableness and Appropriateness of the Pertinent
     Appraisals Performed [by Karen Sands] which was granted.
     Subsequently, this Court found that the settlement agreement
     reached on June 13, 2012 before Judge Roscioli was binding and
     enforceable.

Trial Court Opinion, 10/18/2017, at 1-3.

     The trial court’s July 31, 2017, decision resolving the case stated:

           AND NOW, this 31st day of July, 2017, upon consideration
     of Defendants’ Motion in limine to Preclude Evidence/Testimony
     Regarding the Reasonableness/Appropriateness of the Pertinent
     Appraisals Performed [by Karen Sands], and evidence presented
     at a Non-Jury trial conducted on June 12, 2017, it is hereby
     ORDERED and DECREED that Defendant[s’] Motion in limine is
     GRANTED.

            The issues presented to this Court have been previously
     litigated and decided by the Honorable Paula Roscioli who
     concluded, “The property settlement agreement reached by the
     parties on January 13, 2012 is binding and enforceable” and “The
     appraisal of the subject property made by Karen E. Sands is
     reasonable and appropriate”. We agree with the previous ruling
     and will not allow the re-litigation of the same as no evidence
     presented would change the outcome. The parties themselves
     came to a settlement agreement that must be enforced.



                                    -4-
J-A12025-18


Order, 7/31/2017. Deutsch filed a motion for post-trial relief, which was denied

and this appeal followed.3, 4

       Our standard of review is well settled:

       When considering a trial court’s verdict in a non-jury trial, we must
       bear in mind the following:

           Our standard of review in non-jury trials is to assess
           whether the findings of facts by the trial court are
           supported by the record and whether the trial court erred
           in applying the law. Upon appellate review the appellate
           court must consider the evidence in the light most
           favorable to the verdict winner and reverse the trial court
           only where the findings are not supported by the evidence
           of record or are based on an error of law. Allegheny
           County Housing Authority v. Johnson, 2006 PA Super
           258, 908 A.2d 336, 340 (Pa.Super.2006). Our scope of
           review regarding questions of law is plenary. Id.

       Skiff re Bus., Inc. v. Buckingham Ridgeview, LP, 2010 PA
       Super 43, 991 A.2d 956, 962 (Pa. Super. 2010).

Century Indem. Co. v. OneBeacon Ins. Co., 173 A.3d 784, 802 (Pa. Super.

2017).

       Deutsch, in his brief, initially addresses the second and third issues in

one argument, claiming the trial court’s decision is not supported by evidence

____________________________________________


3Deutsch timely complied with the order of the trial court to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.

4  On December 27, 2017, pursuant to this Court’s per curiam order, Deutsch
filed a praecipe to enter judgment following the denial of Deutsch’s motion for
post-trial relief by order dated October 18, 2017.            See Brown v.
Philadelphia College of Osteopathic Medicine, 760 A.2d 863 (Pa. Super.
2000) (appeal does not lie from order denying post-trial motions but rather
upon judgment entered following disposition of post-trial motions).



                                           -5-
J-A12025-18


of record, and the trial court committed error in the application of the relevant

laws concerning the authority, statutory duties and responsibilities of Sands

and Bahnick. Lastly, Deutsch addresses the first issue, arguing Sands and

Bahnick violated the Real Estate Appraisers Certification Act5 and Pennsylvania

Code, and committed negligence per se.           Because all three issues are

intertwined, we address them together.

        Deutsch disputes the trial court’s finding and conclusion in the July 31,

2017 order that “[t]he issues presented to this Court have been previously

litigated and decided by the Honorable Paula Roscioli.” Order, 7/31/2017.

Deutsch argues “[t]hat Bahnick and Sands committed negligence, and more

specifically negligence per se, was established by Deutsch’s discovery in the

instant case long after the Partition Action was decided by Judge Roscioli.”

Deutsch’s Brief at 26-27. Deutsch also contests the trial court’s finding and

conclusion that “agree[d] with the previous ruling and will not allow the re-

litigation of the same as no evidence presented would change the outcome.”

Order, 7/31/2017. Deutsch argues the issue of whether Sands and Bahnick

committed negligence per se was presented to the court only in the instant

case. See Deutsch’s Brief at 27. Finally, Deutsch challenges the trial court’s

finding and conclusion that “[t]he parties themselves came to a settlement

agreement that must be enforced,” Order, 7/31/2017. Deutsch argues, “On


____________________________________________


5   63 P.S. § 457.1 et seq.


                                           -6-
J-A12025-18


the contrary, the settlement agreement was fundamentally premised on the

appraisal of the properties at issue by a licensed, competent and legally

authorized appraiser which was not the case.” Deutsch’s Brief at 28.

       In addition, Deutsch complains that the trial court’s order of October 18,

2017, denying his post-trial motion, contains errors of law and findings which

are not supported by competent evidence. Deutsch disputes the trial court’s

findings and conclusions, including, inter alia, that Bahnick complied with the

Pennsylvania Code; that Sands was qualified and appropriately licensed to

appraise the property; that the property at issue was residential in character

because it was zoned Agricultural/Rural Residential; and that Appraisers did

not commit negligence per se. See Deutsch’s Brief at 28-31.

       Lastly, Deutsch argues that Sands was a certified residential appraiser

and, therefore, her authority was limited to performing appraisals relating

solely to the appraisal of residential property.      He asserts the property

appraised by Sands is not residential property. Deutsch maintains Sands

exceeded her authority, as set forth in 63 P.S. § 457.6,6 and Bahnick failed to




____________________________________________


6A certified residential appraiser “shall consist of those persons applying for
and granted certification relating solely to the appraisal of residential real
property …..” 63 P.S. § 457.6(a)(1).



                                           -7-
J-A12025-18


perform his specific, statutorily mandated supervisory responsibility, as set

forth in 49 Pa. Code 36.54. 7

        We first address the trial court’s July 31, 2017 order, which stated, inter

alia, that “[t]he issues presented to this court have been previously litigated

and decided by the Honorable Paula Roscioli, who concluded, ‘The property

settlement agreement reached by the parties on January 13, 2012 is binding




____________________________________________


7   Pursuant to 49 Pa. Code 36.54:

        (c) A certified general real estate appraiser who utilizes a certified
        residential real estate appraiser as an assistant for an appraisal of
        nonresidential property or an appraisal of residential property of
        more than four dwelling units shall:

           (1) Directly supervise and control the residential
           appraiser's work, assuming total responsibility for the
           contents of the appraisal report, including all value
           conclusions.

           (2) Accompany the residential appraiser during the
           physical inspection of the property until the general
           appraiser determines the residential appraiser is
           competent under USPAP to perform the physical inspection
           unaccompanied.

           (3) Co-sign the appraisal report as set forth in § 36.52 and
           specify in the appraisal report the nature of the significant
           real property appraisal assistance rendered by the
           residential appraiser.

           (4) Provide the residential appraiser, at the time of
           application for general appraiser certification, with copies
           of designated appraisal reports requested by the Board to
           verify the residential appraiser's experience.

49 Pa. Code § 36.54(c).

                                           -8-
J-A12025-18


and enforceable’ and ‘The appraisal of the subject property made by Karen E.

Sands is reasonable and appropriate’.” Order, 7/31/2017.

     It is well settled that collateral estoppel applies

     if (1) the issue decided in the prior case is identical to one
     presented in the later case; (2) there was a final judgment on the
     merits; (3) the party against whom the plea is asserted was a
     party or in privity with a party in the prior case; (4) the party or
     person privy to the party against whom the doctrine is asserted
     had a full and fair opportunity to litigate the issue in the prior
     proceeding and (5) the determination in the prior proceeding was
     essential to the judgment.

     Collateral estoppel is also referred to as issue preclusion. It is a
     broader concept than res judicata and operates to prevent a
     question of law or issue of fact which has once been litigated and
     fully determined in a court of competent jurisdiction from being
     relitigated in a subsequent suit.

Vignola v. Vignola, 39 A.3d 390, 393 (Pa. Super. 2012) (citations omitted).

     It bears emphasis that in the earlier partition action, after Deutsch had

entered a property settlement agreement in which he agreed, inter alia, to be

bound by the determination of the Banks’ appraiser, Deutsch disputed the

appraisals performed by the Bank’s appraiser, Sands. In response, Deutsch’s

co-owner, Bodish, filed a motion to enforce the settlement agreement. The

matter ultimately proceeded to a non-jury trial before Judge Roscioli and

Deutsch presented the appraisals of his experts, Raymond Geiger and William




                                     -9-
J-A12025-18


T. Stoerrle, SRA.8,   9   Judge Roscioli issued an Opinion with Findings of Fact

and Conclusions of Law, concluding that the parties’ property settlement

agreement “reached by the parties on January 13, 2012 is binding and

enforceable[,]” and “[t]he appraisal of the subject property made by Karen E.

Sands is reasonable and appropriate.” See Opinion, 12/27/2012 (Deutsch

v. Bodish, No. C-48-CV-2011-8591), at 4 (Conclusions of Law, Nos. 1 & 3).10

Deutsch subsequently filed the present action. The case proceeded to a non-

jury trial before Judge Giordano, and Deutsch again presented Geiger and

Stoerrle’s appraisals as evidence. See Trial Exhibits P-5, P-14, P-15, P-16,

and P-17.     Thereafter, the trial court entered its order of July 31, 2017,

granting Appraisers’ motion in limine to preclude evidence and testimony

regarding    the    reasonableness      and    appropriateness   of   the   appraisals

performed by Sands, finding the issues presented had been previously

litigated, and barring “re-litigation of the same as no evidence presented




____________________________________________


8 Based on Geiger’s appraisal, Deutsch was owed $37,550 by Bodish and,
based on Stoerrle’s appraisal, Deutsch was owed $62,375 by Bodish. See
Deutsch’s Brief at 17.

9 In this case, counsel for Appraisers informed the trial court “there is no
transcript of the trial [before Judge Roscioli].” N.T., 6/12/2017, at 10.

10 See Trial Exhibit D-2, Tab 6. We note that in her opinion, Judge Roscioli
made the following finding of fact: “In light of our findings above with respect
to the enforceability of the settlement agreement, we have not evaluated or
considered the additional appraisals offered by [Deutsch].”             Opinion,
12/27/2012, at 4 (Finding of Fact, No. 17).

                                          - 10 -
J-A12025-18


would change the outcome. The parties themselves came to a settlement

agreement that must be enforced.” Order, 7/31/2017.

      We agree with the trial court’s determination as we find the collateral

estoppel test set forth in Vignola, supra, applies here. In the partition action,

Deutsch disputed the accuracy of Sands’ appraisal, which is identical to the

issue presented by the instant action. In the partition action, there was a final

judgment. In the partition action, Deutsch was the plaintiff, as he is in the

present case, and he had a full opportunity in the partition action to litigate

the accuracy and quality of Sand’s appraisal. He did so by presenting the

appraisals of his experts, Geiger and Stoerrle, to the court. Judge Roscioli,

however, concluded the parties’ agreement to use an appraiser chosen by the

Bank was binding and enforceable, and further concluded, as a matter of law,

that Sands’ appraisal was “reasonable and appropriate.”            As such, this

determination regarding Sands’ appraisal was essential to the judgment.

Thereafter, Deutsch did not file any post-trial motion or appeal in the partition

action. Accordingly, in light of Judge Roscioli’s determination regarding the

merits and quality of Sands’ appraisal, we conclude that Judge Giordano

properly applied collateral estoppel to bar the present action in its entirety.

      Furthermore, while Deutsch claims that he did not discover that Sands

was licensed as a certified residential appraiser until after the partition action

had concluded, and the present action is the first time he is alleging negligence

per se, his argument is unavailing. Because Sands’ appraisal was at issue in


                                     - 11 -
J-A12025-18


the partition action, her licensure, which was a matter of public record,11 was

a relevant issue. However, Deutsch did not raise this issue in the partition

action,    and    collateral   estoppel   applies   to    this   waived   issue.   See

Buyfigure.com, Inc. v. Autotrader.com, Inc., 76 A.3d 554, 561 (Pa.

Super. 2013) (“The doctrine of res judicata/collateral estoppel applies not only

to matters decided, but also to matters that could have, or should have, been

raised and decided in an earlier action.”). Accordingly, no relief is due.

        Finally, Deutsch disputes the trial court’s October 18, 2017, denial of

post-trial relief and its reasoning that Appraisers did not commit negligence

per se.     Deutsch maintains the property at issue was not residential in

character.       See Deutsch’s Brief at 29, 34.          He argues the property was

undeveloped farmland used solely for farming and points to tax assessment

records showing “that the parcels at issue were all designated as ‘Agricultural’

and each parcel was and is in the Act 319 and Act 43 farmland preservation

and conservation programs.”12 Id. at 34-35. Deutsch argues:

              Based on the clear, concise and unambiguous interrogatory
        answers and deposition testimony of Sands and Bahnick,[13] there
        is no question that Sands solely performed ALL of the work
        associated with preparing and generated the Appraisals. Based
        on the clear, concise and unambiguous interrogatory answers and
____________________________________________


11   See www.pa.gov.

12 It bears mention that Act 319 and Act 43 are included in the various tax
assessment exemption and abatement programs of Northampton County:
https://www.northamptoncounty.org/FISAFF/ASSESSMNT/Pages/Prograaspx

13   See Trial Exhibits P-2, P-3, P-11, and P-12.

                                          - 12 -
J-A12025-18


      deposition testimony of Sands and Bahnick, there is no question
      that Bahnick performed NONE of the work associated with
      preparing the Appraisals and provided NO supervision over Sands
      notwithstanding his acknowledgement to the contrary on the
      Appraisals.

                                      ****

             Sands lacked the requisite qualifications, licensure,
      certification and competency to appraise the Property without
      supervision ….

                                      ****

            Bahnick did not physically inspect the Property and provided
      no supervision or control over Sands’ work. In signing the
      Appraisals, Bahnick certified and agreed to accept full
      responsibility for the contents of the appraisal reports including,
      but not limited to, Sands’ analysis, opinions, statements,
      conclusions, and certification.         Discovery unequivocally
      established that Bahnick simply provided rubber-stamp approval
      of the appraisals prepared by Sands and provided no supervision
      to Sands thereby contradicting his own certifications.


Deutsch’s Brief at 35 (capitalization in original), 36, 37-38.

      The trial court, however, analyzed Deutsch’s negligence per se claim, as

follows:

             63 P.S. § 457.6(a)(1) defines certified residential
      appraiser’s as “those persons applying for and granted
      certification relating solely to the appraisal of residential real
      property.” Additionally, § 457.6(a)(2) defines certified general
      appraiser's as “those persons applying for and granted
      certification relating to the appraisal of both residential and
      nonresidential real property without limitation.” Section 36.54 of
      the Pa. Code explains the duties of a supervisory general real
      estate appraiser in instances where a certified residential real
      estate appraiser is utilized as an assistant to appraise
      nonresidential property or residential property that contains more
      than four dwelling units. Pursuant to § 36.54(c)(1), a certified
      general real estate appraiser must “[d]irectly supervise and
      control the residential appraiser's work, assuming total
      responsibility for the contents of the appraisal report, including all

                                     - 13 -
J-A12025-18


     value conclusions.” Section 36.54(c)(2) further provides that a
     general real estate appraiser shall “[a]ccompany the residential
     appraiser during the physical inspection of the property until the
     general appraiser determines the residential appraiser is
     competent under USPAP [Uniform Standards of Professional
     Appraisal Practice] to perform the physical inspection
     unaccompanied.” Finally, under § 36.54(c)(3), a certified general
     appraiser must “[c]o-sign the appraisal report as set forth in §
     36.52 and specify in the appraisal report the nature of the
     significant real property appraisal assistance rendered by the
     residential appraiser.”

           Here, the Bank retained the services of Imperial and
     Defendant Bahnick in order to determine an appropriate method
     by which to partition the property. Subsequently, Defendant
     Bahnick assigned the appraisal task at issue to Defendant Sands.
     In her capacity as a certified residential appraiser, Defendant
     Sands appraised and provided a valuation of the property.
     Defendant Sands then submitted the appraisal to Defendant
     Bahnick for review and approval in his capacity as a certified
     general appraiser. There is nothing to suggest that Defendant
     Bahnick failed to properly supervise, review, or approve the
     appraisal reports provided by Defendant Sands, including her
     analysis, opinions, statements, conclusions, and certification.
     Moreover, there is nothing to suggest Defendant Bahnick had
     determined that Defendant Sands was incompetent to perform the
     appraisal in accordance with the requirements of USPAP. This
     includes performing the physical inspection of the property
     unaccompanied. Additionally, contrary to [Deutsch’s] contention,
     the property at issue was zoned Agricultural/Rural Residential
     rather than simply Agricultural. Moreover, the record indicates
     the property contained fewer than four dwelling units. Thus,
     Defendant Sands, as a certified residential appraiser, was qualified
     and appropriately licensed to appraise the property without the
     supervision of a certified general appraiser.

Trial Court Opinion, 10/18/2017, at 4-6.

     We find the trial court’s determinations concerning the professional

conduct of Bahnick and Sands and the property’s zoning classification are

supported by competent evidence of record and are not premised on an error



                                    - 14 -
J-A12025-18


of law. The trial court rejected Deutsch’s arguments and we find no basis

upon which to disagree with the trial court’s analysis.

      In summary, based on our review, we conclude collateral estoppel

applies and bars the entirety of Deutsch’s present action. Furthermore, we

conclude the trial court correctly disposed of Deutsch’s post trial motion claim

that Appraisers were negligent per se. Accordingly, we affirm.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/18




                                     - 15 -
