J-A27037-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CYNTHIA CLIFTON,                       :      IN THE SUPERIOR COURT OF
                                       :            PENNSYLVANIA
                 Appellee              :
                                       :
           v.                          :
                                       :
JOANNE BRUSCEMI,                       :
                                       :
                 Appellant             :            No. 76 WDA 2014

          Appeal from the Order entered on December 17, 2013
           in the Court of Common Pleas of Allegheny County,
                     Civil Division, No. GD 12-24293


CYNTHIA CLIFTON,                       :      IN THE SUPERIOR COURT OF
                                       :            PENNSYLVANIA
                 Appellant             :
                                       :
           v.                          :
                                       :
JOANNE BRUSCEMI,                       :
                                       :
                 Appellee              :           No. 107 WDA 2014

        Appeal from the Judgment entered on December 17, 2013
           in the Court of Common Pleas of Allegheny County,
                     Civil Division, No. GD 12-24293

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                   FILED JANUARY 26, 2015

     Joanne Bruscemi (“Bruscemi”) appeals, and Cynthia Clifton (“Clifton”)

cross-appeals from the Order and Judgment entered by the trial court on

December 17, 2013, which upheld as enforceable an August 3, 2003

Agreement (“Agreement”) between the parties. We affirm.
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      The trial court aptly summarized the relevant history underlying the

instant appeal as follows:

             In 1993[,] [] Clifton and [] Bruscemi were involved in a
      relationship and began living together in an apartment. In
      1995[,] [] Clifton and [] Bruscemi moved to a single family
      home located at 266 Harrison Road, Turtle Creek, PA 15145
      [“the Property”]. At that time, the title to the [Property] was
      solely in [] Clifton’s name, but in 2003[,] [] Clifton signed a deed
      transferring ownership to [] Bruscemi and [] Clifton as joint
      tenants. The recorded deed contains a clause that makes it
      subject to [the Agreement] between [] Clifton and [] Bruscemi.
      Paragraph 4 of that [A]greement states:

         If the relationship of [Clifton] and [Bruscemi] should
         terminate, then [Bruscemi] agrees to transfer the
         residence immediately, upon vacating the property, back
         to [Clifton] in exchange for payment by [Clifton] to
         [Bruscemi] of 50% of the assessed value of the
         [P]roperty at the time of termination less $60,000.

             In October of 2012, the relationship of [] Clifton and []
      Bruscemi terminated.       [] Clifton then filed the lawsuit that
      initiated this litigation. The lawsuit requested that [] Bruscemi
      be compelled to sign a deed transferring her interest in the
      [Property] to [] Clifton.

            … [O]n December 2, 2013[, the trial court] signed a
      [D]ecree directing [] Bruscemi to transfer her interest in the
      home to [] Clifton, with no payment due from [] Clifton. The
      [D]ecree also directed [] Clifton to satisfy a mortgage both [she]
      and [] Bruscemi had signed and to pay all expenses of the
      transfer of [] Bruscemi’s interest….

Trial Court Opinion, 2/13/14, at 1-2. Both parties filed post-trial motions,

which the trial court denied.       Thereafter, the trial court entered its

Judgment. Bruscemi timely filed an appeal, after which Clifton also filed a

Notice of Appeal. Both parties filed timely, court-ordered Pa.R.A.P. 1925(b)

Concise Statements of Matters Complained of on Appeal.


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The Bruscemi Appeal (No. 76 WDA 2014)

      We first address the claims raised by Bruscemi. Bruscemi presents the

following claims for our review:

      [I.] Did the trial court commit an error of law when it concluded
      that [] Clifton’s physically abusive self-help eviction of []
      Bruscemi did not render the 2003 Agreement unenforceable?

      [II.] In the alternative, did the trial court apply the $60,000
      credit referenced within the 2003 Agreement in a manner that
      was inconsistent with the intent of the parties when it subtracted
      that amount from one[-]half the assessed value to drive []
      Bruscemi’s share of the equity, rather than subtract the $60,000
      from the full assessed value?

Brief for Bruscemi at 3 (some capitalization omitted).

      When reviewing the verdict from a bench trial, we review the evidence

of record in the light most favorable to the verdict winner to determine

whether competent evidence supports the trial court’s findings, and whether

the court erred in reaching its conclusions of law. Newman Dev. Group of

Pottstown, LLC v. Genuardi’s Family Mkt., Inc., 98 A.3d 645, 652 (Pa.

Super. 2014). Upon review, this Court will only reverse if the trial court’s

findings of fact are unsupported by competent evidence or if it erred as a

matter of law. Id. “We afford the same weight to the trial court’s findings

of fact as we do a jury’s verdict.” Id.

      Bruscemi first claims that the trial court erred when it failed to

conclude that Clifton’s “physically abusive self-help eviction” of Bruscemi

rendered the Agreement unenforceable. Brief for Bruscemi at 9. Bruscemi


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disputes the trial court conclusion that Clifton’s “physically abusive self-help

measures” do not constitute a breach of the Agreement, as physical abuse is

not prohibited by the Agreement. Id. According to Bruscemi, the trial court

is legally inconsistent when it interprets the Agreement as implying that

Bruscemi “is to vacate the house upon [Clifton’s] unilateral declaration that

the relationship has ended.”    Id. at 9-10 (emphasis omitted).       Bruscemi

further contends that there is no legal foundation for such an implication, as

the parties stood on equal footing and were joint owners with the right of

survivorship. Id. at 10. According to Bruscemi,

      [i]n light of the court’s express finding that [Bruscemi] suffered
      physical abuse at the hands of [Clifton]—which of necessity
      caused [Bruscemi] to leave her home—[] Clifton had neither a
      legal nor equitable basis to enforce the 2003 [A]greement and
      thereby obtain sole title to the house….

Id. Therefore, Bruscemi contends, she is entitled to a full, one-half share of

the net fair market value of the Property, after a deduction for the

outstanding balance of the mortgage. Id.

      Bruscemi’s claim is one of contract interpretation. When interpreting

the language of a contract,

      the intention of the parties is a paramount consideration.
      Thomas Rigging & Constr. Co., Inc. v. Contraves, Inc.,
      2002 PA Super 134, 798 A.2d 753, 755 (Pa. Super. 2002). “In
      determining the intent of the parties to a written agreement, the
      court looks to what they have clearly expressed, for the law does
      not assume that the language of the contract was chosen
      carelessly.”   Meeting House Lane, Ltd. v. Melso, 427
      Pa.Super. 118, 628 A.2d 854, 857 (1993), appeal denied, 537
      Pa. 633, 642 A.2d 486 (1994) (citations omitted).



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           When interpreting agreements containing clear and
     unambiguous terms, we need only examine the writing itself to
     give effect to the parties’ intent. Osial v. Cook, 2002 PA Super
     214, 803 A.2d 209, 213 (Pa. Super. 2002). The language of a
     contract is unambiguous if we can determine its meaning
     “without any guide other than a knowledge of the simple facts
     on which, from the nature of the language in general, its
     meaning depends.” Baney v. Eoute, 2001 PA Super 260, 784
     A.2d 132, 136 (Pa. Super. 2001). “When terms in a contract are
     not defined, we must construe the words in accordance with
     their natural, plain, and ordinary meaning.” Cordero v.
     Potomac Ins. Co. of Illinois, 2002 PA Super 60, 794 A.2d 897,
     900 (Pa. Super. 2002). As the parties have the right to make
     their own contract, we will not modify the plain meaning of the
     words under the guise of interpretation or give the language a
     construction in conflict with the accepted meaning of the
     language used. Meeting House Lane, Ltd., 628 A.2d at 857.

          … [T]he terms of a contract are ambiguous if the terms are
     reasonably or fairly susceptible of different constructions and are
     capable of being understood in more than one sense. Cordero,
     794 A.2d at 900. Additionally, we will determine that the
     language is ambiguous if the language is “obscure in meaning
     through indefiniteness of expression or has a double meaning.”
     Baney, 784 A.2d at 136. Where the language of the contract is
     ambiguous, the provision is to be construed against the drafter.
     Cordero, 794 A.2d at 900.

State Farm Fire & Cas. Co. v. PECO, 54 A.3d 921, 928 (Pa. Super. 2012)

(quoting Profit Wize Marktg. v. Wiest, 812 A.2d 1270, 1274-75 (Pa.

Super. 2002)).

     The Agreement addressed the disposition of the Property, upon

termination of the relationship between Clifton and Bruscemi, as follows:

            3. The consideration for this transfer is that [Bruscemi]
     agrees to grant [Clifton] the first right of first refusal to purchase
     the residence at any time at [sic] the real estate assessed value
     less $60,000 as indicated in the following sentence. If the
     residence is sold at any time to any entity, [Clifton] shall receive
     the first $60,000 of the gross sale price before expenses with the


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J-A27037-14

      net remainder split between [Clifton] and [Bruscemi] as joint
      owners of the property.

            4. If the relationship of [Clifton] and [Bruscemi] should
      terminate, then [Bruscemi] agrees to transfer the residence
      immediately, upon vacating the property, back to [Clifton] in
      exchange for payment by [Clifton] to [Bruscemi] of 50% of the
      assessed value of the [P]roperty at the time of termination less
      $60,000.

Agreement, ¶¶ 3, 4.

      The Agreement between the parties states that prior to its execution,

Clifton was the sole owner of the Property.     Id., ¶ 1.   By a Deed dated

August 30, 2003, Clifton transferred the Property, “in one[-]half interest” to

Bruscemi.    Id., ¶ 2.   The parties do not dispute that the relationship

between Clifton and Bruscemi terminated. The Agreement is unambiguous

that upon termination of the relationship, Bruscemi is to transfer the

Property to Clifton, “upon vacating the property[.]”      See id., ¶ 4.     The

Agreement makes no reference to fault for the termination of the

relationship, and does not include an alternative in which Bruscemi may

remain in possession of the Property. As the trial court correctly concluded,

      [t]o be ambiguous, the [A]greement has to be capable of being
      understood in more than one sense.          See Hutchinson v.
      Sunbeam Coal Co., 513 Pa. 192 at 201, 519 A.2d 385 at 390
      (1986). The omitted provisions and the unilateral unlimited right
      provided to [] Clifton do not have the effect of giving what is set
      forth in the [A]greement more than one meaning….




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J-A27037-14

Trial Court Opinion, 2/13/14, at 2-3. Because the Agreement’s language is

clear, and not capable of more than one meaning, we cannot grant Bruscemi

relief on this claim.1

      In her second claim, Bruscemi asserts that the trial court improperly

interpreted the paragraph 3 of the Agreement, which afforded a $60,000

credit for Clifton. Brief for Bruscemi at 10. Bruscemi argues that the trial

court ignored the intent of the parties regarding Clifton’s initial $60,000

investment in the Property. Id. at 11. Specifically, Bruscemi argues that

      [t]he [A]greement was to have reflected nothing more than
      “reimbursement” of [Clifton’s] initial investment in the event of a
      change to the parties’ domestic circumstances—whether such
      change occurred by dint of a joint decision to sell the house, or
      by dint of a change in the parties’ emotional attachment to each
      other.

Id. Bruscemi further argues that “[t]he difference in the wording of ¶ 3 and

¶ 4 reflects nothing more than scrivener ineptness or a legally sloppy

attempt to be concise.”     Id.   According to Bruscemi, “[o]nly scrivener

ineptness explains why [] Bruscemi in this instance receives none of the

equity in the home to which she contributed for 17 years as joint owner

notwithstanding her personal liability on the several mortgages the parties

executed over the years.”    Id. Bruscemi takes issue with the trial court’s

interpretation of the Agreement, given its exercise of the court’s equitable

powers in requiring Clifton to refinance the mortgage. Id. at 11 n.3.

1
  We accept the trial court’s explanation that any statements made during
trial did not preclude the trial court’s subsequent legal interpretation of the
Agreement. See Trial Court Opinion, 2/13/14, at 2-3.

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J-A27037-14

      In its Opinion, the trial court addressed this claim and concluded that

it lacks merit. Trial Court Opinion, 2/13/14, at 3-4. We agree with the trial

court’s determination, as set forth in its Opinion, and affirm on this basis as

to Bruscemi’s second claim. See id.


The Clifton Appeal (No. 107 WDA 2014)

      Clifton presents the following claims for our review:

      I.     Whether the trial court erred in dismissing [Clifton’s]
             claims for counsel fees[?]

      II.    Whether the trial court erred in making findings
             unsupported by the evidence that [Clifton’s] claims for
             accounting and damages were offset by contributions of
             greater than 50% by [Bruscemi?]

      III.   Whether the trial court erred in making findings
             unsupported by the evidence that [Clifton] had utilized
             self-help, had assaulted [Bruscemi], as to the assessed
             valuation of the subject [P]roperty and as to the date of
             termination of the parties’ relationship[?]

Brief for Clifton at 4.

      Clifton first claims that the trial court improperly dismissed her claim

for counsel fees.2    Id. at 8.   Clifton argues that at trial, counsel for both

parties agreed that the issue of counsel fees would be bifurcated.          Id.

However, regardless of this agreement, the trial court found in favor of

Bruscemi and denied an award of counsel fees without a hearing.             Id.

2
 Clifton sought counsel fees pursuant to 42 Pa.C.S.A. § 2503. Section 2503
provides, in relevant part, that counsel fees may be awarded “as a sanction
against another participant for dilatory, obdurate or vexatious conduct
during the pendency of a matter.” 42 Pa.C.S.A. § 2503(7).



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J-A27037-14

Clifton argues that the trial court’s interpretation of the agreement, i.e., that

only the amount of counsel fees was bifurcated, is in error.          Id. at 10.

According to Clifton, absent a hearing, the trial court had before it no

information from which to determine the extent of Bruscemi’s alleged bad

faith in pursuing frivolous claims, “many of which she abandoned at the

eleventh hour, only to raise new claims outside of the pleadings to which

[Clifton] had to respond.”3 Id.

      In its Opinion, the trial court addressed this claim, and concluded that

the proceeding was bifurcated only as to a determination of the “amount” of

counsel fees, not as to entitlement.     Trial Court Opinion, 2/13/14, at 5-6.

We agree with the trial court’s sound reasoning, as set forth in its Opinion,

and affirm on this basis with regard to Clifton’s claim for counsel fees. See

id.

      Clifton next claims that the trial court erred “in making findings

unsupported by evidence that [Clifton’s] claims for accounting and damages

were offset by contributions of greater than 50% by [Bruscemi].” Brief for

Clifton at 17. Clifton argues that “there was no evidence put on by Bruscemi

to quantify the amounts she allegedly paid on behalf of [Clifton].”           Id.

(emphasis in original). Although Bruscemi claimed that she had paid more

3
  In support of her claim, Clifton points out, inter alia, that Bruscemi failed to
plead an ambiguity in the Agreement. Brief for Clifton at 12. Although
Bruscemi referred to “fraud” in her Answer, Clifton contends, fraud is not
pled in New Matter, and without the particularity required by law. Id. at 14.
Clifton asserts that she was forced to prepare for a claim of fraud. Id.



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than her 50% share of expenses over the years, Clifton argues, Bruscemi

presented no evidence as to how the amount paid by Bruscemi. Id. Clifton

contends that Bruscemi’s evidence only confirmed the amounts paid by

Clifton. Id.

      In its Opinion, the trial court addressed this claim and concluded that

it lacks merit. Trial Court Opinion, 2/13/14, at 6-7. We agree with the trial

court’s reasoning, as set forth in its Opinion, and discern no abuse of

discretion or error in this regard. Accordingly we affirm on the basis of the

trial court’s Opinion with regard to this claim. See id.

      Finally, Clifton claims that the trial court erred in determining (1) that

she had utilized “self-help” and assaulted Bruscemi, (2) the value of the

property, and (3) the date of termination of the relationship between Clifton

and Bruscemi. Brief for Clifton at 18. Clifton argues that these findings are

not supported by evidence, and the trial court erred in making its credibility

determinations. Id.

      On appeal in cases arising from a non-jury trial, “[w]e will respect a

trial court’s findings with regard to the credibility and weight of the evidence

unless the appellant can show that the court’s determination was manifestly

erroneous, arbitrary and capricious or flagrantly contrary to the evidence.”

J.J. Deluca Co. v. Toll Naval Assocs., 56 A.3d 402, 411 (Pa. Super. 2012)

(citation omitted).




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J-A27037-14

      In its Opinion, the trial court explained its findings and credibility

determinations.   Trial Court Opinion, 2/13/14, at 7-8.       The trial court’s

findings are supported in the record, and we cannot conclude that the trial

court’s determinations were manifestly erroneous, arbitrary, capricious or

flagrantly contrary to the evidence. See J.J. Deluca Co., 56 A.3d at 411.

Accordingly, we affirm on the basis of the trial court’s Opinion with regard to

Clifton’s final claim. See Trial Court Opinion, 2/13/14, at 7-8.

      Order and Judgment affirmed.

      Ford Elliott, P.J.E., joins the memorandum.

      Shogan, J., files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/26/2015




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