J   -A23014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAN M. CHASE, PERSONAL                        IN THE SUPERIOR COURT OF
REPRESENTATIVE OF THE ESTATE OF                     PENNSYLVANIA
CHRIS S. CHASE, CHRIS S. CHASE
FAMILY ENTERPRISES, LLC, AND LARRY
D. FRAZEE

                         Appellants

                    v.

DAVID M. CREEGAN

                         Appellee                 No. 1681 WDA 2015


             Appeal from the Judgment Entered October 16, 2015
               In the Court of Common Pleas of Bedford County
                      Civil Division at No(s): 136 for 2012




JAN M. CHASE, PERSONAL                        IN THE SUPERIOR COURT OF
REPRESENTATIVE OF THE ESTATE OF                     PENNSYLVANIA
CHRIS S. CHASE, CHRIS S. CHASE
FAMILY ENTERPRISES, LLC, AND LARRY
D. FRAZEE

                         Appellees

                    v.

DAVID M. CREEGAN

                         Appellant                No. 1757 WDA 2015


             Appeal from the Judgment Entered October 16, 2015
               In the Court of Common Pleas of Bedford County
                 Civil Division at No(s): 136 for the year 2012
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BEFORE:     LAZARUS, J., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                                 FILED APRIL 04, 2017

        Jan M.   Chase, Personal Representative of the Estate of Chris S.

Chase,' Chris S. Chase Family Enterprises, LLC., and Larry D. Frazee

(collectively    "Plaintiffs/Sellers")   appeal      and    David     M.   Creegan

(Creegan/Buyer) cross -appeals from the judgment entered on the jury's

verdict in favor of Creegan in the amount of $126,000.00, after the trial

court denied Plaintiffs' and Creegan's post -trial motions.            After careful

review, we affirm.

        On January 29, 2008, the parties entered into a        "contract for deed"2

whereby Plaintiffs agreed to sell Creegan     a   448.75 -acre tract of land located

at 557 Bedford Valley Road, in Londonderry Township, Bedford County.

Although the title abstract attached to the parties' agreement of sale and oil

and gas leases on the tract indicated that the property consisted of 448.75

acres, it actually consisted of 246.25 acres. The parties agreed upon         a   sale

price of $225,000.00, and that all payments would be made by January 1,

2010.     Installment payments of $25,000.00 were due by Creegan upon

execution of the agreement and by January 9, 2009; and          a   balloon payment


*   Retired Senior Judge assigned to the Superior Court.

1   Plaintiff Chris Chase passed away during the pendency of the action.

2 Although the actual document is titled "Contract for Deed," we have chosen
to use the more universal term, "agreement of sale," throughout this
memorandum.


                                         -2
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was due by January 1, 2010, which included the remainder of the purchase

price and 6% interest.        In addition, Creegan was to pay all taxes and

assessments levied against the property.

         In the event that the agreement was terminated, Creegan was

required to return the property in "substantially the same condition" as it

existed on the sale date. In the event of default, Creegan was to forfeit any

and all payments made under the terms of the contract, including taxes and

assessments.

         Creegan took immediate possession of the premises on the date of

sale and tendered     a   check to Sellers in the amount of $18,750.00.      The

check was returned for insufficient funds. In early February 2008, Creegan

discovered the acreage discrepancy after reviewing       a   property survey that

had been prepared in October 2007 for Plaintiff Chris Chase by witness, Rex

Clark.    Creegan later wired funds to Plaintiffs to make up for the returned

check and for the remainder of the down payment.             On March 8, 2010,

Plaintiff Chris Chase sent Creegan     a   letter acknowledging that the parties

had met face-to-face to discuss Creegan's current default status on the

contract and, if Creegan paid $25,000.00 (principal and interest) by April 7,

2010, that the deadline for the final payment would be extended to October

7, 2010.     The letter also indicated that the interest rate would retroactively

increase from 6% to 7%, effective January 1, 2010.

         On February 25, 2011, Plaintiffs sent Creegan a     letter reminding him

that his final payment was still past due and extending his pay-off date to

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September 10, 2011, under three conditions: (1) payment of $32,000.00 by

March 10, 2011; (2) acknowledgment that the amount of land sold to him

was actually 246.25 acres; and (3) return of      a   signed copy of the letter to

Plaintiffs. On May 13, 2011, Plaintiffs gave Creegan written notice that final

payment was due in the amount of $214,502.25 and demanded immediate

possession of the property if payment was not tendered. On May 12, 2011,

Kristin M. Banasick, Esquire, notified Creegan by letter that she had been

advised by Plaintiffs that he was still in default, and that according to the

parties' agreement, "if the default continues for an additional period of

fifteen (15) days, you are to surrender the premises and Mr. Chase may

repossess the property." Letter to Creegan, 5/12/11.

        On February 6, 2012, Plaintiffs filed an action in     ejectment against

Creegan, seeking the court to "restor[e] plaintiffs to the possession of the    .   .




.   property" and "for costs, counsel fees and such other and further relief this

Court deems just and appropriate."       Plaintiffs' Complaint, 2/6/12, at 6.   In

response, Creegan filed an answer, new matter and three counterclaims:

Counterclaim I (Fraudulent Misrepresentation as Inducement to                Enter

Contract    -   damages);3 Counterclaim II (Fraudulent Misrepresentation as




3 Creegan filed two fraudulent misrepresentation counterclaims. The first
claim sought reimbursement of the funds he paid toward the agreement of
sale and for damages for improvements he made to the property. The
second claim sought reformation of the contract and specific performance
with a reduced price reflecting the correct amount of acres of the tract.


                                       -4
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Inducement to Enter Contract            -   specific performance); and Counterclaim        III
(Unjust      Enrichment).       Creegan         claimed   that     Plaintiffs   "intentionally

misrepresented the acreage of the property sold subject to the contract as

containing 448 acres."         Creegan Answer, New Matter, and Counterclaim,

4/27/12, at    1119.   Creegan also averred that after he was induced to buy the

property (which he believed to consist of 448 acres) and discovered the

acreage discrepancy, Plaintiffs told him to "continue with the payments

under the contract with the assurance that the inaccuracy would be

addressed."       Id. at    1123.       Finally, Creegan asserted that based upon

Plaintiffs' assurances, he "invested substantial sums of money in improving

the property," including            a   cabin, well, fencing and         gating, and road

improvements. Id. at        1126.

        In their answer to Creegan's counterclaims, Plaintiffs averred:

        It is admitted the Counterclaim defendants had the property
        surveyed in 2007 by Rex E. Clark, R.S.        It is denied the
        Counterclaim defendants misrepresented the acreage to the
        Counterclaim plaintiff. To the contrary, prior to closing on
        January 29, 2008, the discrepancy in the acreage was
        openly discussed and a copy of the survey was provided
        to Counterclaim plaintiff indicating the actual acreage
        being sold.
Plaintiffs' Answer to Counterclaim, 5/21/12, at            '11   20 (emphasis added).      In

response to Creegan's first set of interrogatories and request for production

of documents, Plaintiffs gave the following additional information to support

paragraph 20 of their answer:

        The plaintiffs [including Larry Frazee] along with the defendant
        gathered at a table in the basement of [4976 White Rock Road,

                                               - 5 -
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        Friendsville, Maryland]. A copy of the survey prepared by Rex
        Clark .   . was provided and reviewed by the parties along with
                       .


        the Purchase Agreement[.] Both parties reviewed and agreed to
        the documents provided by and to them prior to closing.
Plaintiffs' Answers to Interrogatories, 1/31/13, at              '11   24(d).

        On June            11, 2015, Plaintiffs filed      a   motion for judgment on the

pleadings, seeking immediate possession of the premises.                        On August 17,

2015, immediately prior to the start of trial, the court entered an order:

dismissing, with prejudice, Creegan's Counterclaim II (Fraud                        -   specific

performance) due to the fact that he was "unable to provide any competent

evidence regarding the value of the real property to seek reformation and

specific performance of the contract;"                  granting judgment on the pleadings

in   favor of Plaintiffs, ejecting Creegan from the premise and giving Plaintiffs

possession of the property; and denying the parties' request for counsel fees

and costs.4           See Order, 8/17/15, at III 1-3; see also N.T. Jury Trial,

8/17/15, at 38, 54-55.              After   a   two-day jury trial held on August 17-18,

2015, the court entered             a   verdict   in   favor of Creegan for $126,000.00 in

damages.          The verdict slip          denoted that the jury awarded               Creegan




4 The court determined that since Plaintiffs were out of possession and
Creegan conceded he had not performed under the contract, Plaintiffs were
entitled to immediate possession in their ejectment action.



                                                  -6
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$68,000.005 for fraud in the inducement (damages) and $58,000 for unjust

enrichment.

        Post -trial motions were filed by both parties and denied by the court

on October 6, 2015. On October 22, 2015, Plaintiffs filed a notice of appeal;

on October 30, 2015, Creegan filed a notice of cross-appeal.6            The court

entered an order requiring Plaintiffs and Creegan to file Pa.R.A.P. 1925(b)

concise statements of matters complained of on appeal, with which the

parties complied. This timely appeal and cross -appeal follow.

        On appeal, Plaintiffs present the following issues   for our consideration:

        (1)   Did the trial court err in refusing to grant judgment in
              favor of the plaintiffs on the counterclaim for unjust
              enrichment where it was conclusively established that the
              relationship of the parties was founded upon an express
              written contract?
        (2)   Did the trial court err in refusing to grant judgment in
              favor of the plaintiffs on the counterclaim for fraud in the
              inducement of a real estate contract where the alleged
              misrepresentation was the quantity of acreage, a defect
              that was readily determinable by a reasonable inspection?
        (3)   Did the trial court err in precluding the    testimony of two
              liability witnesses where both were identified as persons
              with first-hand knowledge of the contract and/or the
              property in response to an interrogatory and as liability
              witnesses in both of Plaintiffs' Pre -Trial Statements on the


5
  This figure represents the payments that Creegan made to Plaintiffs under
the agreement of sale. The payments were in the form of six separate
checks, dated 1/29/08, 1/29/08, 11/12/08, 12/1/08, 2/09 and 4/10.

6See Pa.R.A.P. 903(b) (cross appeals may be filed within 14 days of date on
which first timely notice of appeal served).


                                       -7
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              basis of an incomplete answer to another interrogatory,
              where [Creegan] made no effort to determine what
              information the witnesses possessed through formal or
              informal discovery?
        (4)   Did the trial court err by refusing to reduce the verdict or
              to give binding instructions to the effect that [Creegan]
              could not recover damages for fraud in the inducement
              that were incurred after he had actual knowledge of the
              correct quantity of acreage where the fraud claim was
              based on a misrepresentation of the quantity of acreage?

        (5)   Did the trial court err by refusing to give the       jury   an
              instruction regarding a rule of construction for interpreting
              a legal description when the metes -and -bounds description
              conflicts with the quantity of land, where the alleged
              misrepresentation was contained in exactly that type of
              legal description?
        (6)   Did the trial court err by precluding the Plaintiffs' claim for
              damages or mesne profits on [the] basis of a label in the
              caption where the facts alleged in the complaint gave rise
              to a claim for either?
On cross -appeal, Creegan presents the following issues     for our review:

        (1)   Whether, under Pennsylvania law, the Honorable Trial
              Court erred by entering a compulsory nonsuit on Count II
              of [Creegan's] Counterclaim and then declining to remove
              said compulsory nonsuit where: 1) similar to Count I of
              [Creegan's] Counterclaim upon which the jury found in
              [Creegan's] favor, Count II of the Counterclaim alleged
              fraud in the inducement but, in the alternative, requested
              modification and specific performance of the underlying
              Contract for Deed to reflect the true acreage of the
              Property in question - 246.25 acres - rather than the
              448[.75] acres fraudulently misrepresented by the
              [Plaintiffs] to [Creegan]; 2) such a request for a
              conditional verdict is authorized under Pennsylvania law;
              3) [Creegan] was prepared to testify to the appropriate
              reformed purchase price at the time of trial; but 4) on the
              morning of trial, and only moments prior to counsels'
              slated delivery of opening statements, the Court very
              unexpectedly entered a compulsory nonsuit on Count II of


                                        -8
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                [Creegan's] Counterclaim, sua                   sponte,   without   any
                testimony being taken in Court.
        (2)     Whether, under Pennsylvania law, the Honorable Trial
                Court erred by granting [Plaintiffs'] motion for judgment
                on the pleadings relative to [Creegan's] sole action in
                ejectment on the basis of the compulsory nonsuit that was
                improperly entered on Count II of [Creegan's]
                Counterclaim where: 1) [Plaintiffs'] motion for judgment
                on the pleadings was filed nearly three years to the day
                after the relevant pleadings were closed; 2) five days prior
                to trial, the Court verbally denied [Plaintiffs'] motion but
                then reversed course only mere moments before the
                commencement of trial; 3) neither the pleadings nor the
                evidence presented at trial established the necessary
                elements to sustain an ejectment action; and 4) the Trial
                Court declined to vacate the judgment so entered.
        I.          Plaintiffs' Claims on Appeal

              A. Unjust Enrichment
        Plaintiffs first assert that the trial court erred in failing to grant

judgment       in    their favor on Creegan's unjust enrichment claim. Specifically,

Plaintiffs     claim     that because they "conclusively established that the
relationship of the parties was founded upon an express written contract,"

Plaintiffs' Brief, at 4, there      is no need to   imply   a   contract under the equitable

doctrine of unjust enrichment.

        Unjust enrichment is essentially an equitable doctrine.                 Where
        unjust enrichment is found, the law implies a contract,                 which
        requires the defendant to pay to the plaintiff the value                of the
        benefit conferred. The elements necessary to prove                      unjust
        enrichment are:
              (1) benefits conferred on defendant by plaintiff; (2)
              appreciation of such benefits by defendant; and (3)
              acceptance and retention of such benefits under such
              circumstances that it would be inequitable for defendant to
              retain the benefit without payment of value. The

                                             -9
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           application of the doctrine depends on the particular
           factual circumstances of the case at issue. In
           determining if the doctrine applies, our focus is not
           on the intention of the parties, but rather on
           whether the defendant has been unjustly enriched.
Mitchell   v.    Moore, 29 A.2d 1200, 1203-04 (Pa. Super. 1999) (emphasis
added) (citations and internal quotation marks omitted).                   Moreover, while

unjust enrichment         is an   equitable remedy, our Court has permitted parties

to plead breach of contract and unjust enrichment alternatively, although

recovery for both claims          is   not allowed. Lugo v. Farmers Pride,         Inc., 967
A.2d 963 (Pa. Super. 2009). Finally,            a   victim of fraud in the inducement has

two options:      (1) rescind the contract, or (2) affirm the contract and sue for

damages. Eigen v. Textron Lycoming Reciprocating Engine Div., 874

A.2d 1179, 1184 (Pa. Super. 2005) (citation omitted).

        Instantly, the jury determined that Creegan was entitled to rescind the

contract due to Plaintiffs' fraud in the inducement.             Rescission, an equitable

remedy, involves      a    disaffirmance of the contract and        a    restoration of the

status quo; whereas, the recovery of damages, which                     is a   legal remedy,

involves an affirmance of the contract.              Wedgewood Diner, Inc. v. Good,
534 A.2d 537, 539-39 (Pa. Super. 1987) (citing 40 A.L.R. 4th 627, 630-31

(1985)). Accordingly, the parties were properly restored to their positions

prior to entering into the agreement; Plaintiffs were given possession of the

property and Creegan was reimbursed all his monies paid under the

agreement.




                                              - 10 -
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        Creegan, however, also testified at trial that Plaintiffs received the

benefit of deer hunts on the property worth $11,500.00 in addition to

substantial improvements he made to the property, including building an

$84,500.00 log cabin, expending $6,038.10 to drill                a   potable water well,

incurring $6,620.00 in expenses to erect over 4,000 linear feet of fencing

and gating, and making            $19,494.39   in    road improvements.           The jury

concluded that where Plaintiffs benefitted from these improvements, in order

to be equitable, Creegan was entitled to restitution for these improvements.

See Restatement (Second) of Contracts,          §    376 (restitution when contract is

voidable).     Thus, based on the evidence substantiating the improvements,

which consisted of invoices, photographs, and check records, we cannot say

that the jury's decision to award damages was unsupported                 in   the record or

demonstrably capricious.          Restatement (Second) of Contracts,              §   371(b)

(measure of restitution interest to extent which other party's property has

bene increased in value); Robbins v.          Kristofic, 643 A.2d 1079          (Pa. Super.

1994).

        B.   Fraud
        Plaintiffs also claim that the court should have entered judgment in

their favor on Creegan's fraud counterclaim.               Specifically, they assert that

because       the    acreage    discrepancy    was    "a     defect   that was        readily

determinable by        a   reasonable inspection," Plaintiffs' Brief, at 4, Creegan

should not have succeeded on this counterclaim.
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        In order to void          a    contract due to an intentional or fraudulent

misrepresentation, the party alleging fraud must prove, by clear and

convincing evidence:

                 (1) a representation; (2) which is material to the
                 transaction at hand; (3) made falsely, with knowledge of
                 its falsity or recklessness as to whether it is true or false;
                 (4) with the intent of misleading another into relying on it;
                 (5) justifiable reliance on the misrepresentation; and (6)
                 the resulting injury was proximately caused by the
                 reliance.
Bortz    v. Noon, 729 A.2d 555, 560 (Pa. 1999), citing Gibbs v.                          Ernst, 647
A.2d 882, 889 (Pa. 1994).                    It   is    not enough simply to assert that          a

statement was "fraudulent" and that reliance upon it induced some action.

Gruenwald          v.   Advanced Computer Applications, Inc., 730 A.2d 1004,
1014 (Pa. Super. 1999).               It   is also     not sufficient to aver that   a    knowingly

false statement was made for the purpose of misleading another into

reliance upon it.          Sewak v. Lockhart, 699 A.2d 755, 759                      (Pa. Super.

1997).       Before fraud will be found,                a   plaintiff must demonstrate that he

justifiably relied on the false statement. Id. To be justifiable, reliance upon
the     representation       of   another              must   be   reasonable.       Drelles     v.

Manufacturers Life Insurance Co., 881 A.2d 822                         (Pa. Super. 2005).

        In   a   case of fraud in the inducement, "the party proffering evidence of

additional prior representations does not contend that the representations

were omitted from the written agreement, but, rather, claims that the

representations were fraudulently made and that 'but for them' he would

never have entered into the agreement."                         Blumenstock      v. Gibson, 811

                                                   - 12 -
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A.2d     1029,       1036   (Pa.   Super.    2002);       see Restatement (Second)               of

Contracts,   §   162(1) ("A misrepresentation            is   fraudulent if the maker intends

his assertion to induce a party to manifest his assent and the maker:                           (a)

knows or believes that the assertion is not in accord with the facts, or (b)

does not have the confidence that he states or implies in the truth of the

assertion, or (c) knows that he does not have the basis that he states or

implies for the assertion.").

         Here, Creegan was provided several documents indicating that the

tract he was purchasing consisted of 488.75 acres, when                       in   actuality it was

44% less than that.          Specifically, the title abstract attached to the parties'

agreement of sale and several oil and gas leases for the parcel stated the

incorrect acreage.          These documents were provided to Creegan when he

agreed to buy the tract.           As the trial court points out, it is unreasonable to

assume that      a   buyer, under the circumstances, would be able to discern with

the naked eye whether          a   given tract of land is four hundred or two hundred

acres.     Moreover, the jury believed Creegan's testimony that he did not

discern the acreage discrepancy               until after he signed the agreement.

Therefore, we conclude that Creegan justifiably relied on Plaintiffs' material

misrepresentation in purchasing the land.                     Cf.   Blumenstock        v. Gibson,

811 A.2d 1029 (Pa. Super. 2002) (party could not justifiably rely upon

seller's prior oral representations, yet sign real estate contract denying those

representations regarding sump pits and pumps being non -operational and

unnecessary;         fact   that    seller   did   not        affirmatively    disclose    pumps'

                                              - 13 -
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functionality irrelevant when buyers could have observed physical condition

of property and made own reasonable inferences about pumps).

            C.    Liability Witnesses
        Plaintiffs next claim that the trial court erred in precluding the

testimony of two lay witnesses, Plaintiff Larry Frazee and his son, Brian

Frazee, whom they allege had first-hand knowledge of                  a   2004 conversation

with Creegan regarding the true acreage of the property.                     Plaintiffs claim

that the trial court incorrectly determined that their testimony should not be

permitted        at trial    because   Plaintiffs violated       discovery   rules    by         not

specifically listing their exact testimony in an answer to an interrogatory.

        Prior to trial, Creegan filed           a       motion in limine to preclude the

testimony of Brian Freeze claiming that while Brian had been identified in

Plaintiffs' pre-trial statement filed in July 2015, he was never identified as an

expert and any testimony that Brian could provide would be "wholly

irrelevant." Motion         in Limine, at   III 4-8.     Because Brian was neither    a     party

to the parties' real estate transaction or present during the singing of the

agreement of sale on January 29, 2008, Creegan claimed that his testimony

about the parties' agreement would be inadmissible hearsay. Id. at                         '11   13.

At trial, the court precluded Brian from testifying that he had              a   conversation

with his Father, Larry, and in the presence of Creegan about the acreage

discrepancy. N.T Jury Trial, 8/17/15, at 5-6.

        In Gill v. McGraw Electical Co., 399 A.2d 1095 (Pa. Super 1979) (en

banc), our Court set forth the factors              a   court must consider in determining

                                              - 14 -
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whether or not             a   witness should be precluded for failure to comply with

discovery rules:

        (1) the prejudice or surprise in fact of the party against whom
        the excluded witnesses would have testified[;] (2) the ability of
        that party to cure the prejudice[;] (3) the extent to which waiver
        of the rule against calling unlisted witnesses would disrupt the
        orderly and efficient trial of the case or of cases in the court[;
        and] (4) bad faith or willfulness in failing to comply with the
        court's order.
Id. at 1102.
        Instantly, both Larry and Brian Frazee were listed as witnesses                in

Plaintiffs' pre-trial memorandum.              However, Brian is not mentioned in the

Plaintiffs' Answers to Interrogatories as having been present at the "closing

on January 29, 2008, [when] the discrepancy in the acreage was openly

discussed and          a   copy of the survey was provided to Counterclaim plaintiff

indicating the actual acreage being sold." Plaintiffs' Answer to Counterclaim,

5/21/12, at        ¶ 20.        Rather, Plaintiffs' answer to that specific interrogatory

states, in relevant part:

        The plaintiffs [including Larry Frazee] along with [Creegan]
        gathered at a table in the basement of [4976 White Rock Road,
        Friendsville[,] Maryland]. A copy of the survey prepared by Rex
        Clark  .   .was provided and reviewed by the parties along with
                       .


        the Purchase Agreement[.] Both parties reviewed and agreed to
        the documents provided by and to them prior to closing.
Plaintiffs' Answers to Interrogatories, 1/31/13, at          ¶   24(d).

        Therefore, while Creegan had notice that these witnesses may be

called at trial to provide testimony with regard to liability and damages, he

had no idea until two weeks before trial that the Plaintiffs intended to offer


                                               - 15 -
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Brian Freeze's testimony to support their position on the central issue in the

case    - whether         Creegan knew the proper acreage of the tract prior to

signing the parties' agreement.                 Compare Smith v. Grab, 705 A.2d 894

(Pa. Super. 1997) (trial court abused its discretion in precluding lay witness

testimony, which did not go to core issue of plaintiff's treatment, where

witnesses          were    listed     in   Plaintiff's       response   to    interrogatories   and

supplemental pre-trial statement) with Gill, supra (where appellees did not

provide     appellant with any notice of expected testimony by expert

witnesses, as required by court's pre-trial order, court committed error in

permitting witnesses to testify at trial) and Nissley v. Pennsylvania R.R.

Co.,    259        A.2d   451       (Pa.   1969)      (where      plaintiff   refused   to   answer

interrogatory relating to expert witness it was error to permit witness to

testify).

        Moreover, to the extent that Larry Freeze was not permitted to testify

regarding the alleged conversation he had with Brian and Creegan, the court

properly limited his testimony to the facts asserted in Plaintiffs' answer to

interrogatories.          See Feingold v. Southeastern PennsylvaniaTransp.

Auth., 488 A.2d 284             (Pa. Super. 1985) (in absence of bad faith or willful

disobedience         of    discovery       rules,     most      significant   considerations    are

importance of witness' testimony and prejudice to party against whom

witness will testify).

              D.    Damages for Fraud Incurred After Creegan had Notice of
                   Acreage Discrepancy

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        Plaintiffs next claim on appeal that it was error for the jury to award

Creegan any damages for fraud in the inducement for the period of time

after he realized the actual acreage of the property.            Instantly, Creegan
testified that after he discovered the acreage discrepancy, Plaintiffs told him

to    continue to pay under the contract with their assurance that the

inaccuracy would be addressed. Therefore, it was reasonable for the jury to

believe Creegan's testimony and award him damages for Plaintiffs' false

assurances even after he discovered the discrepancy.               Boggavarapu v.
Ponist, 542 A.2d 516, 519         (Pa. 1988)   (jury exercises prerogative to believe
all, some, or none of evidence presented); Foflygen v.             Allegheny Gen.
Hosp., 723 A.2d 705, 712 (Pa. Super. 1999) (questions of credibility and
conflicts in evidence are for fact -finder to resolve). Accordingly, we find no

merit to this claim on appeal.

                E.   Jury Instruction for Misrepresentation of Acreage
        Plaintiffs claim that the trial court erred in refusing to instruct the jury

on a legal description of the land in metes and bounds terms, rather than

solely acres. Plaintiffs claim that there was factual support in the record to

warrant     a    metes and bounds charge, specifically the title abstract, and that

such   a   charge would have "given the jury legal guidance on how to construe

th[ose] documents."

        In examining jury instructions, the scope of review is limited to
        determining whether the trial court committed a clear abuse of
        discretion or error of law controlling the outcome of the case.
        Error in a charge is sufficient ground for a new trial if the charge
        as a whole is inadequate or not clear or has a tendency to

                                          - 17 -
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        mislead or confuse rather than clarify a material issue. Error will
        be found where the jury was probably [misled] by what the trial
        judge charged or where there was an omission in the charge. A
        charge will be found adequate unless the issues are not made
        clear to the jury or the jury was palpably misled by what the trial
        judge said or unless there is an omission in the charge which
        amounts to a fundamental error. In reviewing a trial court's
        charge to the jury, the reviewing court must look to the charge
        in its entirety. Because this is a question of law, the court's
        review is plenary.
Passarello v. Grumbine, 87 A.3d 285, 287                  (Pa. 2014) (citations, quotation

marks, and ellipses omitted).

        Here, the majority of the evidence describing the size of the tract of

land    involved      in   the   parties' dispute         used   acres   as   the   relevant

measurement. While the title abstract attached to the Plaintiffs' complaint

did refer to     a    metes and bounds description of the property, the court

concluded that to describe the land in          a   way other than the more commonly

used term of acreage would run the risk of confusing the                  jury. We agree
and find that the court's instruction, as             a   whole, was adequate and the

omission of       a   metes and bounds charge was not fundamental error.

Passarello, supra; Pringle v. Rapaport, 980 A.2d 159, 173                       (Pa. Super.

2009) (purpose of charging jury            is   to clarify issues which jurors must

determine).

            F.   Preclusion of Recovery for Mesne Profits
        In their final claim on appeal, Plaintiffs argue that the court improperly

precluded them from seeking mesne profits or damages where "those items




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were placed at issue based on the material facts alleged." Plaintiff's Brief on

Appeal, at 12.

        Mesne profits are defined as      "[i]ntermediate profits; profits accruing
between      two   points   of time.    Profits    accruing   from   land   during   an

intermediate period, such as     a   period of tortious holding by the defendant in

an action in ejectment." 25 Am J2d Eject § 148.

        If a plaintiff in ejectment does not declare or give notice of a
        claim for mesne profits, he can, after judgment in ejectment,
        sue in trespass vi et armis for such damages. The notice or
        declaration for mesne profits in the ejectment action is but a
        permissive right to consolidate a claim for trespass vi et armis
        with the action of ejectment. The Act of 1876, P. L. 95, Pa. Stat.
        Ann. tit. 12, § 1557, making it lawful for a plaintiff to give notice
        or declare for mesne profits in an action of ejectment, is
        permissive and not mandatory, and the Act itself was but
        declaratory of decisional law.
Crecium v. McCann, 67 A.2d 622 (Pa. Super. 1949).
        In their ejectment action, Plaintiffs included an ad damnum clause

seeking "possession of the above -captioned real property, for costs, counsel

fees and such other further relief as this Court deems just and appropriate."

Plaintiffs' Complaint, 2/3/12, at 27.      Plaintiffs, however, did not specifically

seek mesne profits in their complaint.            See Reilly v. Crown Petroleum

Co., 63 A. 253, 254 (Pa. 1906) (after recovery in ejectment, trespass is

proper remedy to recover mesne profits of land taken by adverse claimant in




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possession of premises).      Therefore, Plaintiffs could have timely' amended

their complaint to include   a   claim for such profits or filed    a   separate action

for mesne profits, albeit within the appropriate statute of limitations. Reilly,

supra; Crecium, supra.           Accordingly, the court did not err in preluding

Plaintiffs from recovering mesne profits in their ejectment action.

        II.   Creegan's Claims on Cross -Appeal

              A. Compulsory Non -Suit on Counterclaim              II
        Creegan contends that the trial court improperly entered nonsuit on

his    counterclaim   (Count II     -   Fraud    (contract   reformation))      at    the

commencement of trial.       Specifically, he asserts that the court prematurely

dismissed     his counterclaim    without first hearing evidence on whether

Creegan was entitled to modification of the contract based on                  a     price

reflecting the true acreage of the tract.

        Here, Creegan failed to produce competent evidence regarding the

true value of the property, based on the reduced acreage, to support

reformation of the parties' agreement. Under such circumstances, the court

properly granted nonsuit on this claim.          See Vicari v. Spiegel, 936 A.2d



7 The court denied Plaintiffs' last-minute request to amend the ad damnum
clause to include damages or mesne profits.         Cheskiewicz v. Aventis
Pasteur, Inc., 843 A.2d 1258, 1266 (Pa. Super. 2004) (leave to amend
complaint is within sound discretion of trial court and should be liberally
granted; however, where plaintiffs, offhand, sought to add claim outside of
legal basis of original complaint, denial of amendment was proper).




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503, 509 (Pa. Super. 2007) (standard of review for entry of            a   nonsuit   is

well -established, "appellate court reverses only if, after giving appellant the

benefit of all reasonable inferences of fact, it finds that the factfinder could

not reasonably conclude that the essential elements of the cause of action

were established.").8

               B.   Grant of Judgment on Pleadings in favor of Plaintiffs
        Finally,    Creegan   claims    that the trial court improperly granted
judgment on the pleadings        in   favor of Plaintiffs prior to the commencement

of trial.   Specifically, he contends that the Plaintiffs were not entitled to

immediate possession of the property on their ejectment action and that

granting the judgment on the eve of trial, when the pleadings had been

closed for almost three years, was error.

        Pursuant to Pa.R.C.P. 1034, "[a]fter the relevant pleadings are closed,

but within such time as not to unreasonably delay the trial, any party may
move for judgment on the pleadings." Pa.R.C.P. 1034(a) (emphasis added).

An appellate court will reverse a trial court's grant of judgment on the


8
  In any event, the remedies of reformation and rescission both could not
have gone before the factfinder; thus, the court properly precluded the
remedy of reformation from going before the jury. See Wedgewood
Diner, Inc., supra at 538 (party cannot, in the assertion or prosecution of
his rights, maintain inconsistent positions; to allow party to allow both
rescission and reformation of contract for fraud would "allow a double
remedy for the same wrong."); but see 25 Am.Jur.2d Election of Remedies,
§ 16 ("where there is nothing more than the mere institution of a suit or
proceeding, which is abandoned or dismissed before judgment, there is
nothing on which to base an estoppel - no benefit and no detriment.").


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pleadings only where   a   clear error of law has been committed or where there

were facts disclosed by the pleadings that should have been resolved by the

jury. Gardner v. Erie Ins. Co., 691 A.2d 459 (Pa. Super. 1997), aff'd 722
A.2d 1041 (Pa. 1999).         Here, the trial court did not err in considering

Plaintiffs' motion before trial where Creegan has failed to show how the June

2015 filing unreasonably delayed trial or how he was prejudiced by the

filing.9 Pa.R.C.P. 1034(a).

        Moreover, having determined that the contract should be rescinded

based upon Plaintiffs' fraud, the court properly returned possession of the

property to Plaintiffs to restore the status quol° See Wedgewood Diner,

supra.
        Judgment affirmed.




9
     We note that the court set a deadline of July 1, 2015 for all filing of
dispositive pre-trial motions.    Plaintiffs' motion was timely filed prior to the
deadline, on June 11, 2015.
10
   Here, the court prematurely returned possession of the property to Sellers
prior to trial and before the jury determined that the contract was voidable
for fraud and should be rescinded. However, because the Sellers were
entitled to possession of the property upon rescission of the agreement and
the return of all monies paid by Buyer, any error was harmless.


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Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 4/4/2017




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