J-A27038-15


                             2016 PA Super 45

JEROME P. OLIVER                               IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

LARRY M. BALL, DANNY R. BALL, LARRY
J. BALL AND MARY H. BALL

                   v.

JOYCE HARMON AND AL HARMON,
INDIVIDUALLY AND AS AUTHORIZED
AGENTS    FOR    HOWARD HANNA
COMPANY, T/D/B/A HOWARD HANNA
COMPANY T/D/B/A HOWARD HANNA
REAL ESTATE SERVICES
                                                    No. 1602 WDA 2014
                        Appellees


          Appeal from the Judgment Entered September 26, 2014
              In the Court of Common Pleas of Butler County
                  Civil Division at No: A.D. No. 09-12349


BEFORE: BOWES, OLSON, and STABILE, JJ.

OPINION BY STABILE, J.:                         FILED FEBRUARY 19, 2016

      Appellant Jerome P. Oliver appeals from the September 26, 2014

judgment entered in the Court of Common Pleas of Butler County (“trial

court”), following the denial of his post-trial motion to remove a compulsory

nonsuit that the trial court granted at the close of his case-in-chief in this

breach of contract action. Upon review, we reverse.
J-A27038-15



       The facts and procedural history underlying this case are undisputed.1

Appellant entered into a sale of real estate contract with Appellees Larry M.

Ball, Danny R. Ball, Larry J. Ball and Mary H. Ball (“Balls”) for the purchase

of two tracts of land in Cranberry Township, Butler County, containing

approximately 71.5 acres (“the Property”).               Balls failed to convey the

Property.    Appellant filed suit against Balls for breach of contract, seeking

specific performance and/or monetary damages. Balls eventually joined as

additional defendants the parties’ dual real estate agents Joyce Harmon and

Al Harmon, individually and as authorized agents for Howard Hanna

Company, t/d/b/a Howard Hanna Company t/d/b/a Howard Hanna Real

Estate Services (“Hanna defendants”).                Balls asserted that the Hanna

defendants were liable to them for contribution and/or indemnification.

       Appellant’s claim for specific performance was severed from his claim

for damages and proceeded to a non-jury trial. Following testimony on the

liability phase, the trial court concluded that a valid and binding contract for

the sale of the Property existed between the parties, which Balls breached.

The case next proceeded to the damage phase, at which Appellant testified

in support of specific performance.            In particular, describing the Property,

Appellant testified that “[i]t was wood[ed] property with some open fields,


____________________________________________


1
  Unless another source is cited, the facts are taken from pages 1 through 3
of the trial court’s September 22, 2014 opinion and order denying
Appellant’s motion for post-trial relief.



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some old farm land, with a, like a wet weather stream running through it. It

was hilly.   Wasn’t terribly hilly but it was sloping like all other property in

Butler County.”       N.T. Trial, 6/17/14, at 341.   Appellant testified that he

planned to purchase the Property for investment purposes.           Id. at 342.

Specifically, he testified that “[m]y plans were to hold it for a long-term

investment.       At that time I was still in the timber business and there was

some timber on [the Property] that I thought could be harvested.” Id. He

also testified:

      [a]s a real estate investor [the Property] had a lot of things I
      look for. It was big so it possibly could be subdivided in the
      future for, you know, further development. Of course, it had all
      the mineral rights coming with it so that was something that I
      hoped to put into my business in the future.

Id. at 342-43.        Appellant testified that the location of the Property was

important to him because it “is only maybe five miles as the crow flies from

my home so that is important, to try to keep my investments within a

reasonable distance from my home and where I work.”                Id. at 343.

Explaining why the Property was important to him, Appellant testified:

      It’s basically the sum of the parts of this property are much
      more valuable than the whole. So, again, what I have learned
      through 26 years of business and what I have been able to do
      and have learned to do is to take a whole property like this that
      has valuable parts, subdivide those parts, if you will, and have it
      become very strong investment.

Id. at 347.       On cross-examination, Appellant acknowledged that he owns

investment properties located as far away as Westmoreland and Crawford

Counties. Id. at 348-49.




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        Following Appellant’s testimony, Balls moved for nonsuit, arguing that

Appellant failed to establish that he lacked an adequate remedy at law. The

trial court agreed, granting Balls’ motion for nonsuit and denying Appellant’s

request for specific performance. Appellant thereafter withdrew his claim for

monetary      damages    against   Balls.    As   a   result,   Balls’   claims   for

indemnification and contribution against the Hanna defendants became

moot.

        On June 27, 2014, Appellant filed a post-trial motion, seeking the

removal of the nonsuit.      Appellant argued that he was entitled to specific

performance because the Property was unique and, therefore, his remedy at

law inadequate.      The trial court disagreed, denying Appellant’s post-trial

motion on September 19, 2014. In so doing, the court observed:

        [Appellant] did not offer evidence that the quality, quantity, or
        type of timber on the [P]roperty is unique or unavailable
        elsewhere. [Appellant] did not offer evidence that gas rights are
        not attainable elsewhere in the [c]ounty. [Appellant] did not
        offer evidence that damages for the loss of these assets were
        unquantifiable, such that he does not have an adequate remedy
        at law. [Appellant] did not offer evidence that he would suffer a
        significant difference in purchase price for the purchase of similar
        property in Butler County or that the difference in purchase price
        is not quantifiable. [Appellant] did not offer evidence that the
        value of this specific . . . [P]roperty was unique to him.
        [Appellant] did not offer evidence that the [P]roperty’s terrain
        was especially important to him, or that its location, other than
        being in Butler County and somewhat close to his home, was
        important to him. In sum, [Appellant] did not offer any evidence
        that this [P]roperty had any unique characteristics, of import to
        him, that cannot be found or purchased elsewhere, even within
        Butler County. Further, [Appellant] did not present any evidence
        to establish that the value of the [P]roperty was not quantifiable
        in money damages.




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J-A27038-15



Trial Court Opinion, 9/22/14, at 9.            On September 26, 2014, Balls filed a

praecipe for entry of judgment in their favor. Appellant timely appealed to

this Court.     The trial court directed Appellant to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. Appellant complied, raising a

single assertion of error, namely:

        The [t]rial [c]ourt abused its discretion by entering a nonsuit on
        [Appellant’s] claim for specific performance of an agreement for
        the sale of real estate after finding that a valid and enforceable
        contract for sale of land existed between [Appellant] and [Balls].

Rule 1925(b) Statement.          In response, the trial court issued a Pa.R.A.P.

1925(a) opinion, which largely incorporated its opinion denying Appellant’s

post-trial motion.

        On appeal,2 Appellant repeats the argument that the trial court abused

its discretion in granting Balls’ motion for nonsuit and denying his claim for

specific performance.3

        We are mindful that our standard of review following the denial of a

motion to remove a compulsory nonsuit is as follows:               “This Court will

reverse an order denying a motion to remove a nonsuit only if the trial court

____________________________________________


2
  To the extent the parties argue that we have jurisdiction over this appeal
despite the trial court’s failure to rule on Balls’ claims for indemnity and
contribution against the Hanna defendants, we agree. Here, as noted
above, Appellant did not succeed against Balls on the underlying action, and
as a result, Balls’ claims against the Hanna defendants became moot. See
Appellant’s Brief at 24-27; Appellee’s Brief at 15. Accordingly, this case is
properly before us. See Pa.R.A.P. 341.
3
    Additional defendants/Appellees did not file a brief in this appeal.



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J-A27038-15



abused its discretion or made an error of law.” Brinich v. Jencka, 757 A.2d

388, 402 (Pa. Super. 2000) (citation omitted), appeal denied, 771 A.2d

1276 (Pa. 2001). “Judicial discretion requires action in conformity with law

on facts and circumstances before the trial court after hearing and

consideration. Consequently, the court abuses its discretion if, in resolving

the issue for decision, it misapplies the law or exercises its discretion in a

manner lacking reason.” Miller v. Sacred Heart Hosp., 753 A.2d 829, 832

(Pa. Super. 2000) (internal citations omitted).    The grant of a nonsuit is

proper where, having viewed all evidence in the plaintiff’s favor, the court

determines that the plaintiff has not established the necessary elements of

his cause of action. Brinich, supra; see Pa.R.C.P. No. 230.1.

      With respect to specific performance, our Supreme Court explained in

Payne v. Clark, 187 A.2d 769 (Pa. 1963):

      From the moment an agreement of sale of real estate is
      executed and delivered it vests in the grantee [(purchaser)]
      what is known as an equitable title to the real estate. Thereupon
      the vendor [(seller)] is considered as a trustee of the real estate
      for the purchaser and the latter becomes a trustee of the
      balance of the purchase money for the seller. Hence, if the
      terms of the agreement are violated by the [seller], [the
      purchaser] may go into a court of equity seeking to enforce the
      contract and to compel specific performance.

Payne, 187 A.2d at 770-71 (internal citations omitted). In other words, a

request for specific performance is an appeal to the court’s equitable powers.

See Lackner v. Glosser, 892 A.2d 21, 31 (Pa. Super. 2006).             Specific

performance generally is described as the surrender of a thing in itself,

because that thing is unique and thus incapable—by its nature—of


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J-A27038-15



duplication. See Cimina v. Bronich, 537 A.2d 1355, 1357 (Pa. 1988). “A

decree of specific performance is not a matter of right, but of grace.”

Barnes v. McKellar, 644 A.2d 770, 776 (Pa. Super. 1994) (citation

omitted), appeal denied, 652 A.2d 834 (Pa. 1994). Such a decree will be

granted only if a plaintiff clearly is entitled to such relief, there is no

adequate remedy at law, and the trial court believes that justice requires

such a decree.      Id.    “Inequity or hardship may be a valid defense in an

action for specific performance and such decree refused if in the exercise of

a sound discretion it is determined that, under                   the   facts, specific

performance would be contrary to equity or justice.”              Payne, 187 A.2d at

771.      Mere    inadequacy      of   price,   however,   will   not   defeat   specific

performance, unless grossly disproportionate. Id.

       Courts in this Commonwealth consistently have determined that

specific performance is an appropriate remedy to compel the conveyance of

real estate where a seller violates a realty contract and specific enforcement

of the contract would not be contrary to justice.4                      See Borie v.
____________________________________________


4
  Outside of this Commonwealth, many jurisdictions have espoused a similar
view where a sale of realty contract is breached. See, e.g., Pardee v.
Jolly, 182 P.3d 967, 973 (Wash. 2008) (en banc) (“Specific performance is
frequently the only adequate remedy for a breach of a contract regarding
real property because land is unique and difficult to value.”) (citation
omitted); Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153 (Del. 2010)
(recognizing that “real property is unique and often the law cannot
adequately remedy a party’s refusal to honor a real property contract.”); In
re Smith Trust, 745 N.W.2d 754, 759 (Mich. 2008) (“Land is presumed to
have a unique and peculiar value, and contracts involving the sale of land
(Footnote Continued Next Page)


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J-A27038-15



Satterthwaite, 37 A. 102 (Pa. 1897) (affirming specific performance for

breach of real estate agreement); see also Agnew v. Southern Ave. Land

Co., 53 A. 752 (Pa. 1902) (noting that a court may enforce specifically only

an agreement for realty whose terms are definite); Rusiski v. Pribonic,

515 A.2d 507, 510 (Pa. 1986) (affirming only the award of specific

performance for breach of a realty agreement); Petry v. Tanglwood

Lakes, Inc., 522 A.2d 1053, 1055 (Pa. 1987) (noting that real estate

contracts “have been traditionally regarded as being specifically enforceable

in equity by the buyer”); Cimina, 537 A.2d at 1360 (reversing this Court’s

decision to overrule the trial court’s grant of specific performance for a

breach of realty agreement). As explained in the second restatement:

                 Contracts for the sale of land have traditionally
                 been accorded a special place in the law of
                 specific performance. A specific tract of land has
                 long been regarded as unique and impossible of
                 duplication by the use of any amount of money.

Restatement (Second) of Contracts, §360 cmt. e.        As is obvious, specific

performance for the sale of land is available because no two parcels of land

are identical.   An award of damages will not suffice to allow a plaintiff to

acquire the same parcel of land anywhere else.        Thus, in the context of


                       _______________________
(Footnote Continued)

are generally subject to specific performance.”); Alba v. Kaufmann, 810
N.Y.S.2d 539, 540 (N.Y.App.Div. 2006) (noting “the equitable remedy of
specific performance is routinely awarded in contract actions involving real
property, on the premise that each parcel of real property is unique.”).



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J-A27038-15



realty agreements breached by a seller, “we can assume that [a buyer] has

no adequate remedy at law.” Snyder v. Bowen, 518 A.2d 558, 560 (Pa.

Super. 1986) (citing 81 C.J.S. Specific Performance § 76 (1977)); cf. Petry,

522 A.2d at 1055 (“[W]here Appellant is not claiming the right to have

an estate in land conveyed to her, an automatic right to compel the remedy

of specific performance cannot be successfully maintained.”).

       Instantly, we note that the parties do not dispute that a valid,

enforceable contract for the Property existed and that Balls breached the

same by failing to convey the Property.5 The parties also do not argue that

hardship or injustice would ensue if Appellant’s request for specific

performance were granted. Rather, the issue on appeal concerns only the

adequacy of a remedy at law, and as such, involves a question of law.

       Appellant points out that the Property is unique because it had a wet

weather stream running through it, was hilly, featured timber and other

minerals, and provided opportunities to him for further development.       See

N.T. Trial, 6/17/14, at 341-43. It also was important that the Property was

only five miles away from his home so that he could keep his investments

within a reasonable distance from home and work.                Id.   Appellant

adequately testified to the unique aspects of the Property and to attributes

that made the parcel valuable to him.            The trial court dismissed this

____________________________________________


5
 Appellant testified that he was ready, willing and able to perform under the
contract. See N.T. Trial, 6/17/14, at 183-84, 333 (Finding of Fact ¶ 32).



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J-A27038-15



testimony upon the basis that Appellant did not demonstrate that these

attributes could not be duplicated elsewhere.   Given that all tracts of land

long have been regarded as unique, and Appellant further testified to the

Property’s unique characteristics vis-à-vis his needs, we agree with Appellant

that a remedy at law is inadequate. Accordingly, we reject the trial court’s

conclusion that Appellant was not entitled to specific performance because

the Property did not have any unique characteristics that could not be found

or purchased elsewhere. We conclude that, based on our review of pertinent

case law, the trial court erred in denying Appellant’s claim for specific

performance and granting Balls’ motion for nonsuit. As stated, courts in this

Commonwealth must enforce specifically realty agreements breached by

sellers, except in cases where hardship or injustice would result.       See,

Snyder, supra; Petry, supra.

      We reject Appellees’ and the trial court’s suggestion that Boyd &

Mahoney v. Chevron U.S.A., 614 A.2d 1191, 1194 (Pa. Super. 1992),

appeal denied, 631 A.2d 1003 (Pa. 1993), stands for the proposition that

land itself is not unique, and that specific performance is only available if

some characteristic of or structure on the land, or the location of the land

itself, is of such importance to a buyer that no other property can duplicate

its value.   In Boyd, we reiterated the elements necessary for specific

performance and observed that a remedy at law was inadequate given the

unique characteristics of the property at issue. Specifically, we noted that

the location of the property was objectively unique, because it was “situated

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J-A27038-15



at the entrance to [the plaintiff’s] commercial development properties.

Ownership of the property would permit Boyd & Mahoney to control the

architectural design and future development of the area.” Id. At 1194-95.

While this Court in Boyd comfortably relied upon aspects of the property

that made the parcel unique to the buyer to demonstrate no adequate

remedy at law was available in that case, this Court nowhere advanced the

proposition urged by Appellees and the trial court that considerations of

uniqueness are exclusive to a buyer.     Our decision in Boyd in no manner

rejected or changed the well-established law that specific performance is

available to enforce sales of realty due to land’s inherent nature as unique

and therefore, impossible of duplication. More directly, the question as to

whether a property must present unique considerations to a buyer, as

opposed to the land, to permit a decree of specific performance was not an

issue before the Court in Boyd. We further note our research has yielded no

case that supports the proposition that realty must be unique only to a

buyer before specific performance may be ordered. To the contrary, our law

makes clear that the remedy of specific performance in realty contracts

derives from the proposition that all land is unique.

      Finally, we reject the Appellees’ and the trial court’s reliance on

Wagner v. Estate of Rummel, 571 A.2d 1055 (Pa. Super. 1990), appeal

denied, 588 A.2d 510 (Pa. 1991), for the proposition that an adequate

remedy at law exists for breach of a realty agreement. In Wagner, Ansley

C. Rummel entered into an agreement with the plaintiffs whereby he granted

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J-A27038-15



the plaintiffs an option to purchase 16 acres of land for $550.00 upon

Rummel’s death.      Eventually, Rummel passed away and his estate and

daughters refused to honor the agreement. The plaintiff brought an action

against the estate of Rummel and his daughters for breach of contract,

seeking specific performance. Following trial, the court issued a decree nisi,

directing the estate of Rummel to “prepare, execute, and deliver to the

[p]lainitffs a deed for the property, upon payment to them of $550.00 by the

[p]laintiffs.” Wagner, 571 A.2d at 1058. The defendants filed exceptions,

which the trial court denied. On appeal, we vacated the trial court’s order

for specific performance based on injustice and hardship.       Specifically, we

observed:

      The only evidence regarding the value of the property was
      testimony that it was worth $55,000.00 to $60,000.00, roughly
      100 times what the [p]laintiffs sought to pay for it. Even
      without such evidence, a price of $550.00 for 16 acres of land,
      with a home on it, raises immediate questions of fairness, and
      whether such a price was unreasonably favorable to the
      [p]laintiffs.   The agreement had been prepared by the
      [p]laintiffs, who admitted that they handled some business
      affairs for Mr. Rummel. There was significant testimony in the
      record to indicate he was unsophisticated at best, if not illiterate,
      regarding business matters and legal documents. He had to
      have others make out checks for him and handle other similar
      tasks. He had little or no schooling. Although the [p]laintiffs
      maintained, in their pleadings, that the [d]ecedent’s daughters,
      Frances Crays and Agnes Wells, had no contact with him for 30
      years, the evidence at trial was uncontradicted that they saw
      him and attended to his needs with great frequency. They
      visited him weekly, cleaned his home for him, and handled his
      personal and business needs. Further, although the [p]laintiffs
      alleged in their pleadings that Mr. Rummel frequently sold
      property at less than full value, no evidence of such prior
      conduct was educed. It appears that the trial court ignored all of
      these factors, which should have been considered in weighing
      the fairness and justice of the [p]laintiffs’ request for specific
      performance.



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J-A27038-15



Id. at 1059. Our decision in Wagner was based upon facts that indicated

plaintiffs sought to purchase property valued between $55,000.00 to

$60,000.00      for    only    $550.00—an          amount   anchored   in   injustice,

circumstances under which equity could not afford relief.              See Payne,

supra. No similar considerations are present here.

        We acknowledge that when the majority in Wagner6 vacated the trial

court’s order granting specific performance, it commented in passing:

        In remanding the case, we would be remiss if we did not discuss
        one other factor which should also be addressed by the trial
        court. We have already pointed out that specific performance of
        a contract should be denied if there is an adequate remedy at
        law available. From our review of the record, it appears that the
        [p]laintiffs may have a right to seek a money judgment. In
        such proceedings at law, questions of unconscionability could
        also be raised as a defense. Moreover, evidence from competent
        appraisers and other experts concerning the value of the
        property could be considered, if appropriate, and the true value
        of the property could be determined.

Id. at 1060 (emphasis added). We reject, as maintained by Appellees and

the trial court, that Wagner stands for the clear proposition that there is no

presumption of an inadequate remedy at law for specific performance of a

contract for a sale of land in Pennsylvania. The gratuitous comments of the

panel majority in Wagner were clearly dicta and did not form the basis for

the Court’s decision in that case. The majority in Wagner does not make

clear, and in fact leaves the reader guessing, as to what specifically in the

record caused the Court to comment as it did, as well as to the legal theory

____________________________________________


6
    Wagner was a 2-1 panel decision of this Court.



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J-A27038-15



upon which the Court felt plaintiffs may have a claim for money damages.

Although dicta may at times provide useful non-binding guidance, the dicta

quoted above is of little assistance without knowing the legal theory or

record references alluded to in this passage from Wagner. Perhaps most

important, the Court did not hold that plaintiffs had a claim for money

damages.        The Court merely speculated that plaintiffs may have such a

claim. Wagner did not change the law of specific performance as it relates

to realty contracts.    Instead, Wagner reaffirmed that a decree of specific

performance involves the exercise of equity and discretion by a court, and

that a court should not order specific performance where it appears that

hardship or injustice will result to either of the parties. Id. at 1058.

      In sum, we conclude that the trial court erred in denying Appellant’s

post-trial motion for removal of nonsuit when the Appellant clearly

established that his remedy at law was inadequate under the circumstances

of this case.

      Judgment reversed.      Case remanded for proceedings consistent with

this opinion. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2016



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