J-A25014-17


                                   2019 PA Super 43

    DANIEL MAISANO & PATRICIA MAISANO                 IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellants

                        v.

    MARSHA AVERY, HAMLET VILLAS,LLC

                             Appellees                  No. 3877 EDA 2016


              Appeal from the Judgment Entered December 7, 2016
                In the Court of Common Pleas of Chester County
                        Civil Division at No: No. 15-04544


BEFORE: STABILE, DUBOW JJ., and STEVENS, P.J.E.*

OPINION BY STABILE, J.:                           FILED FEBRUARY 15, 2019

        Appellants Daniel and Patricia Maisano (“Maisanos”), husband and wife,

appeal from the December 7, 2016 judgment entered in the Court of Common

Pleas of Chester County (“trial court”) in this action for specific performance

of a real estate sales agreement, challenging inter alia, damages awarded in

their favor and against Appellee Marsha Avery (“Avery”). Upon review, we

affirm in part, reverse in part, and remand for further proceedings.

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

Avery owned approximately twenty-one acres of land directly north of the

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*   Former Justice specially assigned to the Superior Court.
1Unless otherwise specified, these facts come from the trial court’s November
9, 2016 decision issued pursuant to Pa.R.C.P. 1038, and its January 19, 2017
opinion filed pursuant to Pa.R.A.P. 1925(a). We also shall refer to facts
undisputed by the parties as gleaned from the record.
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Maisanos’ home. Avery’s land was bounded to the north by a private lane,

which had access to a public street named Bayard Road. Avery sought to

develop her land into several single-family home lots.     Because of limited

access from the private lane, the yield from the twenty-one acres was three

lots. To increase the yield to nine lots, Avery sought to gain access to the

land from Indian Springs Road located to the south. The Maisanos’ home,

however, stood between Avery’s twenty-one acres of land and Indian Springs

Road. The Maisanos rejected Avery’s request for an easement through their

property, but expressed interest in selling their home to her.

      As a result, on December 21, 2004, the parties executed a sales

agreement (the “Agreement”) pursuant to which Avery agreed to purchase

the Maisanos’ residential real estate (the “Property”), located at 103 Indian

Springs Road, for $1,350,000.00.       Avery paid them $150,000.00 upon

execution of the Agreement. The remaining $1,200,000.00 was due at the

time of final settlement, scheduled for December 29, 2006.

      On June 13, 2006, the parties executed an addendum to the Agreement,

delaying the settlement to December 31, 2008 because of Avery’s lack of, or

inability to secure, funds to complete the real estate transaction on or by

December 29, 2006.

      In the summer of 2006, the parties orally transacted a land swap,

whereby the Maisanos conveyed to Avery approximately 0.27 acres of their

land upon which Avery constructed an access road to her proposed housing

development. In exchange, Avery conveyed to the Maisanos approximately

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0.45 acres of her land to the north of the Maisanos’ property. On July 17,

2016, two deeds were consummated to accomplish the land swap. Although

disputed by Avery, the Maisanos claimed that between June 2006 and

December 2008, Avery, without seeking their permission, installed a storm

water drainage system on “a significant portion” of the Property for the

development of her nine residential lots. The Maisanos contend they did not

restrict Avery from installing the system because Avery had committed in

writing to purchase the Property and continued to assure them that when she

obtained the necessary funds from the sale of her “spec home” located on one

of her nine lots, she would purchase the Property. Nonetheless, the Maisanos

claimed that they never granted Avery an easement for the storm water

drainage system, and that it was Avery who obtained all necessary permits by

falsely stating she obtained an easement from the Maisanos for the system.

      On December 18, 2008, the parties executed yet another addendum to

the Agreement to delay the settlement date to June 1, 2011, because Avery

continued to lack the necessary funds and/or was again unable to secure the

funding necessary to close on the Property on December 31, 2008. When it

came time to settle on the Property on June 1, 2011, Avery again was

financially unable to purchase the Property and failed to set a place and time

for the closing. Nor did Avery offer to tender the purchase price in exchange

for a deed of conveyance.

      On September 10, 2012, the mortgage held by Susquehanna Bank on

the lots owned by Avery was purchased by Hamlet Villas, LLC (“Hamlet”), a

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Pennsylvania limited liability company formed by Avery for which she was the

sole principal managing partner.     On July 24, 2013, Avery transferred

complete title and ownership of the lots to Hamlet.

     By letter dated August 23, 2013, the Maisanos demanded that Avery set

a time and place for settlement and pay the remaining purchase price in

exchange for a deed of conveyance on the Property and/or execute another

addendum extending the closing date. They further advised that if Avery did

not perform as requested, the Maisanos would deem her in default of the

Agreement and seek full legal redress.     Avery refused, via a letter dated

September 7, 2013. Id. at 33. In her letter, Avery stated in part:

     I executed those addendums because I always had a sincere
     desire to purchase your home with a genuine belief that I would
     have the financial ability to close the deal by each respective
     closing date. However, as you know, I have not and cannot agree
     to enter into any further extension agreement because of my
     financial inability to purchase your home now or in the next
     several years. Due to my recent foreclosure, judgments, and
     other credit related issues, there is no way for me to agree in good
     faith to purchase your home. It will take years for me to
     reestablish positive credit to have any borrowing ability.

       ....

     I have no idea what the future after that holds. Even if I could
     reestablish credit, the value and condition of your house have
     substantially diminished over the years making any required bank
     appraisal unlikely to substantiate a loan for the purchase price
     that was initially established in 2004.

Avery’s Letter, 9/7/13.

     On February 12, 2016, the Maisanos filed a complaint against Avery and

Hamlet for breach of contract and trespass, seeking, inter alia, specific

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performance.      The Maisanos contended there was no stipulated liquidated

damages clause in the Agreement in the event Avery breached the contract,

thus preserving Maisanos’ right to sue for specific performance and/or actual

monetary damages. The Maisanos further alleged Hamlet was the alter ego

of Avery and that title to Avery’s undeveloped lots was transferred to Hamlet

to avoid any attempt by the Maisanos to enforce the Agreement or to seek

damages.

        On March 30, 2016, Avery filed an answer to the complaint, raising new

matter and counterclaims.2 The case eventually proceeded to a bench trial,

following which the trial court found in favor of the Maisanos and against

Avery.     In its decision, the trial court concluded that Avery breached the

Agreement. Trial Court Opinion, 11/9/16, at 10. On the issue of damages,

however, the trial court awarded the Maisanos $150,000.00 plus interest as

liquidated damages. Id. at 18. The trial court reasoned that the Maisanos

failed to prove actual damages resulting from Avery’s breach of the

Agreement.      The trial court also concluded that the Maisanos had granted

Avery an irrevocable license to construct a storm water system on their land.

Id.    In this regard, the trial court found that the land development plans

showed

        an underground storm water management area on [the]
        Maisano’s [sic] property. Maisano[s] and Avery agreed that
        Mr. Maisano was asked at the Township meeting if he was in
        agreement with the submitted plans.     Both testified that
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2   Prior to trial, the trial court dismissed Avery’s counterclaims.

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       Mr. Maisano replied that “because of the Agreement of Sale,
       [Avery] was the equitable owner of his property” and, therefore,
       had authority to submit the plans. However, Mr. Maisano also
       testified that he “never saw” the plans prior to 2013, a statement
       which defies explanation.

Id. at 4.    To the extent the value of the license had any impact on the

Property, the trial court awarded the Maisanos $5,000.00 in nominal damages.

Id. at 18.

       On November 23, 2016, the trial court denied the Maisanos’ motion for

post-trial relief. On December 7, 2016, the trial court’s verdict was reduced

to judgment. On December 19, 2016, the Maisanos timely appealed to this

Court.3 The trial court ordered them to file a Pa.R.A.P. 1925(b) statement of

errors complained of on appeal. They complied, raising numerous assertions

of error. In particular, they argued that the trial court erred in failing to grant

them specific performance, as provided for under the Agreement.                 In

response, the trial court issued a Pa.R.A.P. 1925(a) opinion, concluding that

the Maisanos were not entitled to specific performance because they failed to

establish the inadequacy of a remedy at law.
____________________________________________


3 On January 20, 2017, we denied Avery’s motion to quash the instant appeal
and granted the Maisanos’ application to amend the notice of appeal nunc pro
tunc. The Maisanos had appealed from the trial court’s November 9, 2016
decision and the November 23, 2016 order denying their motion for post-trial
relief. We noted that an appeal lies only from a judgment entered subsequent
to a trial court’s disposition of post-trial motions and not from an order denying
post-trial motions. Because the Maisanos did not appeal from the December
7, 2016 judgment, but rather from the order denying their motion for post-
trial relief, we granted their application to amend the notice of appeal to reflect
that the appeal was taken from the December 7, 2017 judgment. To the
extent Avery seeks to quash this appeal again based on this issue, we deny
her relief.

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      On appeal, the Maisanos present four issues for our review:

      [I.] Where parties specifically contract for specific performance as
      a remedy, do old fashioned concepts of equity permit the trial
      court to ignore the plain language of the contract and re-write the
      contract to impose the remedy it selects?

      [II.] Where it is clear there can be no adequate remedy granting
      damages, may a court nevertheless deny a parties [sic] chosen
      and contracted for remedy of specific performance because the
      party was unable to prove damages?

      [III.] May an irrevocable license be imposed where the dominant
      party relied on a contract to purchase, and not a license; and
      where, because of equitable conversion, the proposed servient
      party held mere bare legal title at the time the proposed
      irrevocable license was created?

      [IV.] Where a party is sued as the alter ego of another party, may
      the court refuse to hear testimony of the relationship of the parties
      simply because it is also clear a fraudulent transfer has occurred?

The Maisanos’ Brief at 3 (unnecessary capitalization omitted).

      We address the Maisanos’ first two arguments together as they are

intertwined. The Maisanos argue that specific performance was the exclusive

remedy under the Agreement in the event of a breach by Avery. As a result,

it is the Maisanos’ contention that the trial court erred in finding otherwise.

      It is settled that because contract interpretation is a question of law, our

review of the trial court’s decision is de novo and our scope of review plenary.

Bair v. Manor Care of Elizabethtown, PA, LLC, 108 A.3d 94, 96 (Pa. Super.

2015), appeal denied, 125 A.3d 775 (Pa. 2015).

      The fundamental rule in interpreting the meaning of a contract is
      to ascertain and give effect to the intent of the contracting parties.
      The intent of the parties to a written agreement is to be regarded
      as being embodied in the writing itself. The whole instrument


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     must be taken together in arriving at contractual intent. Courts
     do not assume that a contract’s language was chosen carelessly,
     nor do they assume that the parties were ignorant of the meaning
     of the language they employed. When a writing is clear and
     unequivocal, its meaning must be determined by its contents
     alone.

     Only where a contract’s language is ambiguous may extrinsic or
     parol evidence be considered to determine the intent of the
     parties. A contract contains an ambiguity if it is reasonably
     susceptible of different constructions and capable of being
     understood in more than one sense. This question, however, is
     not resolved in a vacuum.        Instead, contractual terms are
     ambiguous if they are subject to more than one reasonable
     interpretation when applied to a particular set of facts. In the
     absence of an ambiguity, the plain meaning of the agreement will
     be enforced. The meaning of an unambiguous written instrument
     presents a question of law for resolution by the court.

Ramalingam v. Keller Williams Realty Group, Inc., 121 A.3d 1034, 1046

(Pa. Super. 2015) (citation and original emphasis omitted).

     Instantly, the Agreement provides in relevant part:

     27. DEFAULT (1-02)

     (A) Seller has the option of retaining all sums paid by Buyer,
     including the deposit monies, should Buyer:

          1. Fail to make any additional payments as specified in
     paragraph 3; OR

           2. Furnish false or incomplete information to Seller,
     Broker(s), or the mortgage lender, if any, concerning Buyer’s legal
     and financial status, or fail to cooperate in the processing of the
     mortgage loan application, which acts would result in the failure
     to obtain the approval of a mortgage loan commitment; OR

           3. Violate or fail to fulfill and perform any other terms or
     conditions of this Agreement.

     (B) Unless otherwise checked in paragraph 27(C), Seller may elect
     to retain those sums paid by Buyer, including deposit monies, in
     one of the following manners:

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            1. On account of purchase price; OR

            2. As monies to be applied to Seller’s damages; OR

            3. As liquidated damages for such breach.

      (C) 󠄌 Seller is limited to retaining sums paid by Buyer, including
      deposit monies, as liquidated damages.

      (D) If Seller retains all sums paid by Buyer, including deposit
      monies, as liquidated damages pursuant to paragraph 27(B) or
      (C), Buyer and Seller will be released from further liability or
      obligation and this Agreement will be VOID.

The Agreement, 12/21/04, at ¶ 27 (emphasis added).

      Before addressing the amount of damages to which the Maisanos were

entitled under the default provisions of this Agreement, we make several

observations about the interpretation of this default provision. First, under

subdivision 27(A), in the event of a buyer default, a seller is not obligated to,

but may, keep all sums paid by the buyer, including deposit monies. Second,

under subdivision 27(B), sums paid by the buyer may be retained, at the

seller’s election, on account of purchase price, as monies applied to damages

claimed, or as liquidated damages for the breach. The seller is not limited by

any election under subdivision 27(B) unless an election under subdivision

27(C) is exercised. Third, if a seller elects to limit himself or herself under

subdivision 27(C) to retain sums as liquidated damages, the seller is entitled

to no further damages, the parties are released from any further liability, and

the Agreement is deemed null and void. Finally, nowhere in this provision is

it provided that these default remedies are exclusive in the event of a breach.

Nor is specific performance indicated as an exclusive remedy.


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        Instantly, it is undisputed that Avery was in default of the Agreement

and that the Maisanos retained the $150,000 deposit paid by Avery upon

execution of the Agreement. It is also clear the Maisanos did not intend to

limit their legal remedies upon Avery’s default. They expressly informed Avery

in writing that they would deem her in default and seek “full legal remedies.”

In fact, the Maisanos did not check the box for subdivision 27(C) that would

limit their remedy to liquidated damages.

        The trial court and parties have devoted much time to discussing

whether the Maisanos were entitled to specific performance of the Agreement.

While the Agreement does not mention specific performance, as will be

discussed infra, the failure to do so does not preclude the Maisanos from

seeking this remedy, which in practical effect, is merely an attempt to recover

the purchase price for the Property.4

        Our Supreme Court has held that “where the action for specific

performance is simply to recover the purchase price, and nothing in the

circumstances of the case requires the aid of chancery to give effect to the

contract, equity will not entertain it. Trachtenburg v. Sibarco Stations,

Inc., 384 A.2d 1209, 1211-12 (Pa. 1978) (citing Appeal of Kaufman, 55 Pa.

383, 385 (Pa. 1867)). Thus, we long have recognized in this Commonwealth

that “an assumpsit action at law for the purchase price,” as provided for in the

Agreement here, is “the functional equivalent of specific performance.”

____________________________________________


4   This remedy also will require the Maisanos to transfer the property to Avery.

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Trachtenburg, 384 A.2d at 1212. In other words, in a real estate context, a

seller’s demand for specific performance “is, in effect,” an action for the

purchase price of the property. Id.

      It is clear that, if the common law court (enables) the [seller] to
      maintain a debt action for the full price, as well as for damages
      . . ., his remedy at law should be regarded as complete and
      adequate. Judgment for the full price is identical with a decree for
      specific performance.

Id. (citation omitted) (first alteration in original). The Court further explained:

      [W]e have gone so far as to hold that the same equitable
      principles applicable to a bill for specific performance apply to an
      action at law for the purchase price.

       ....

      The $1,000 in escrow is nothing more than part of the purchase
      price, and since equitable principles would be fully applicable to
      appellees’ action . . . it seems clear the trial court cannot enter
      judgment in favor of [the sellers] unless its order is conditioned
      upon [the sellers] transferring the deeds to the three parcels of
      real estate; [the sellers] should not be permitted to recover the
      purchase price and still retain ownership of the three contiguous
      parcels.

Id. at 1212-13 (citations omitted).

      Consistent with the principles outlined in Trachtenburg and the plain

language of the Agreement, the Maisanos sought by way of “specific

performance” the contract purchase price as damages conditioned upon their

transfer of the Property. Specifically, under paragraph 27(B), the Maisanos

were permitted to seek damages on account of purchase price. We therefore

conclude that not only were the Maisanos within their contractual rights to

seek specific performance, but also their demand for specific performance

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was, in fact, a demand for the purchase price of the Property as stated in the

Agreement.

      The trial court did not err in recognizing the general principle that

specific performance is available only when damages at law would be

insufficient due to the special nature of the subject matter, or when damages

are impractical when it is impossible to arrive at a measure of damages with

any sufficient degree of certainty. Trial Court 1925(a) Opinion, 1/14/17, at

5-6 (citing First Nat’l State Bank v. Commonwealth Fed. Sav. & Loan

Ass’n, 610 F.2d 164, 174 (3d. Cir. 1979)). Nor can we find error with the

trial court’s conclusion there was nothing unusually special about the Property

that would make an award of damages insufficient. However, we do find error

in the trial court’s failure to award as damages the full purchase price for the

Property (less deposit monies paid and retained). The trial court erred by

faulting the Maisanos for not adequately proving the current market value of

the Property. They did not need to do so, as the proper measure of damages

for specific performance was the purchase price. To the extent the trial court

declined to award the purchase price as damages because, under general

principles of law, specific performance is not available where damages are

ascertainable, the court committed legal error. As stated, in the case of a

seller’s claim for breach of a real estate sales agreement, a claim for specific

performance is a demand for the purchase price, even though it is for an

ascertainable amount of damages. Accordingly, we reverse the trial court’s




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judgment with respect to damages and remand this case to the trial court for

a new damage trial.5

        Due to our disposition of the Maisanos’ first two issues, we decline to

address the Maisanos’ third, i.e., that the trial court erred in finding a

revocable license was created with respect to the installation of the storm

water system installed over the Property.          We have concluded that the

Maisanos are entitled to the contract price damages and, in return, the

Property must be conveyed to Avery. As such, it is of no moment how or why

the storm water system was placed on the Property, as the Maisanos are to

be awarded the purchase price for the Property as damages. Awarding the

purchase price as damages is unaffected by the installation of the storm water

system, since the system was installed after the purchase price was agreed

upon.     In light of this, we also conclude the trial court must vacate its

$5,000.00 nominal damages award to the Maisanos for the irrevocable license

relating to the storm water system.



____________________________________________


5 Approximately 12 years passed from the execution of the 2004 Agreement
until trial commenced in October 2016. According to the record, during this
time, the Property suffered some degree of deterioration. In particular, the
house developed roof leaks requiring buckets in the living room to collect
rainwater. When asked, Mr. Maisano believed it was Avery's responsibility to
pay for any and all repairs. We note the Maintenance and Risk of Loss
provision at paragraph 23 of the Agreement provides that the seller must
maintain the Property in its condition as of execution of the Agreement,
normal wear and tear excepted. If wear and tear is proven beyond that which
can be considered normal, purchase price damages should be reduced by an
amount that represents these damages.

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      We next address the Maisanos’ final issue that the trial court abused its

discretion in disallowing any evidence of the property transfer between Avery

and Hamlet.

      Admission of evidence is within the sound discretion of the trial court

and a trial court’s rulings on the admission of evidence will not be overturned

absent an abuse of discretion or misapplication of law.        Schuenemann v.

Dreemz, LLC, 34 A.3d 94, 100–01 (Pa. Super. 2011). An abuse of discretion

is not merely an error of judgment, but if in reaching a conclusion the law is

overridden    or   misapplied,   or   the   judgment   exercised   is   manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by

the evidence or the record, discretion is abused. Id.

      Instantly, we find no abuse of discretion in the trial court’s decision to

disallow any evidence relating to the transfer of properties from Avery to

Hamlet. As the trial court aptly found, “this case was a breach of contract

action” between the Maisanos and Avery. Trial Court Opinion, 1/19/17, at 11.

Hamlet “was not a party to the contract. Thus, whether Avery transferred

funds to [Hamlet] is of no consequence.” Id. The Maisanos’ claim that Avery

transferred her undeveloped lots to Hamlet to avoid damages for her breach

and enforcement of the Agreement is irrelevant to the question of whether

Avery breached the Agreement. Accordingly, we find no abuse of discretion




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in the trial court’s conclusion that “any evidence of transfers between Avery

and [Hamlet] was irrelevant.”6 Id. at 12.

       In sum, we affirm the trial court’s judgment to the extent the court

found Avery breached the Agreement, as well as with regard to exclusion of

evidence by the Maisanos relating to Hamlet.       We reverse the trial court’s

judgment insofar as it failed to entertain properly the Maisanos’ claim for

purchase price damages, which is a claim for specific performance.          We

remand this case to the trial court for further proceedings consistent with this

decision.

       Judgment affirmed in part and reversed in part.        Case remanded.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/15/19


____________________________________________


6  We recognize that the Maisanos have a concern that after judgment is
entered in their favor, Avery, due to her transfers to Hamlet, may be judgment
proof. It is possible relief may be available under The Pennsylvania Uniform
Fraudulent Transfers Act (“PUFTA”), 12 Pa.C.S.A. § 5101 et seq., based upon
the Maisanos’ suggestion Avery intended to defraud them by transferring
assets to Hamlet. We offer no opinion on the merits of any such claim, but
merely mention this possibility to suggest that while the claim may be
irrelevant to the current action, it may have some bearing on other causes of
action at a later time.

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