J-A26020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 EDWARD H. JANUSEY AND DEBORAH               :   IN THE SUPERIOR COURT OF
 H. JANUSEY, HIS WIFE                        :        PENNSYLVANIA
                                             :
                        Appellants           :
                                             :
                                             :
              v.                             :
                                             :
                                             :   No. 208 WDA 2019
 DEAN M. GROSE AND VALERIE J.                :
 GROSE, HIS WIFE                             :

              Appeal from the Order Entered January 9, 2019
    In the Court of Common Pleas of Washington County Civil Division at
                         No(s): No. 2014-1048

 EDWARD H. JANUSEY AND DEBORAH               :   IN THE SUPERIOR COURT OF
 H. JANUSEY, HIS WIFE                        :        PENNSYLVANIA
                                             :
                                             :
              v.                             :
                                             :
                                             :
 DEAN M. GROSE AND VALERIE J.                :
 GROSE, HIS WIFE                             :   No. 286 WDA 2019
                                             :
                        Appellants           :

              Appeal from the Order Entered January 9, 2019
    In the Court of Common Pleas of Washington County Civil Division at
                            No(s): 2014-1048


BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY LAZARUS, J.:                           FILED NOVEMBER 26, 2019

     Edward        H.    Janusey     and   Deborah    H.   Janusey   (h/w)   (the

Januseys/Sellers/Plaintiffs) appeal and Dean M. Grose and Valerie J. Grose

(h/w) (the Groses/Buyers/Defendants) cross-appeal from the trial court’s

order denying the Groses’ motion for reconsideration of the order striking the
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jury’s punitive damages award and denying the Januseys’ motion contesting

an award of attorney’s fees and costs in favor of the Groses. After careful

review, we affirm.

       On May 13, 2013, the Groses entered into two agreements of sale with

the Januseys for the purchase of property located in Washington County. The

total sale price for the property was $4,999,999.          The first agreement

indicated that the property would be subdivided into two lots (Lot 1 and Lot

2).   Lot 1 consisted of an 18.15 acre parcel with a large residence; the

purchase price for Lot 1 was $3,300,000. Lot 2 consisted of 79.75 acres of

land; the purchase price for Lot 2 was $1,699,999. In two separate deeds,

each dated June 21, 2013, the Januseys conveyed the two lots to the Groses;

each lot had its own tax identification number.

       The purchase of both Lots occurred simultaneously; however, the

Groses financed the purchase of Lot 2 as a purchase money mortgage with

payment of the Note on Lot 2 due in full on or before December 31, 2013. At

closing, the Groses signed a Term Note outlining the terms of the sale for Lot

2. The oil and gas under both lots were assigned by the Januseys to the

Groses as part of the Lot 2 transaction.1

       The Groses moved into the home on Lot 1 in early fall 2013 and

performed minor renovations.            In December 2013, a water pipe in the
____________________________________________


1 Separate documents were executed for the Lots and the oil and gas
conveyance. On December 18, 2013, the Groses executed an oil and gas
lease with a third party for the rights on both Lots.


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residence froze on two different occasions. On January 7, 2014, a water pipe

burst in the residence causing water to flood the kitchen area. The Groses

hired a specialist to remediate the water damage to the home. As a result of

the burst pipe, the Groses withheld their payment on Lot 2 and demanded

that the Januseys correct the house’s heating and plumbing systems.2 The

Januseys declined to fix the problem and demanded payment on Lot 2. When

the Groses continued to withhold payment, the Januseys filed an assumpsit

action on February 26, 2014, seeking payment of the principal amount of Lot

2, with interest3 and reasonable out-of-pocket expenses. The Groses filed an

answer, new matter, and counterclaims alleging breach of contract, fraudulent
____________________________________________


2 In the Seller Disclosure Statement executed by the Januseys, they indicated
that they were not aware of “any water leakage, accumulation or dampness
within the basement, garage or crawl space, any past or present water leakage
in the house or other structure, any water . . . damage to the property, any
leaks or other problems, past or present, related to the water supply, pumping
system, well and related items, any problems with any of [the] plumbing
fixtures, any problems with any water heater or related equipment, and any
problems or repairs needed regarding [the heating system].” West Penn
Multi-List, Inc. Seller Disclosure Statement, 4/8/13, at ¶¶ 4(e), 6(a), 6(h),
8(h), 10(b), 11(b), and 13(h).

3   The parties’ agreement for Lot 2 includes the following language:

        If any amount of principal due under this Note or otherwise is not
        paid by [the Groses] when due, whether at the stated maturity of
        this Note, by acceleration, or otherwise, such amount shall bear
        interest until paid at a rate per annum which is 10 percent (10%).
        Such sums shall be immediately due and payable without demand
        or notice by [the Januseys].

Term Note, 6/21/13, at 1 (emphasis added).




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and negligent misrepresentation, and violations of Pennsylvania’s Real Estate

Seller Disclosure Law (RESDL)4 and the Unfair Trade Practices and Consumer

Protection Law (UTPCPL).5 Specifically, the Groses claimed that the Januseys

failed to disclose a material defect in the home, namely that certain pipes and

utilities were located in under-heated and under-insulated eaves of the roof

of the home that exposed the heating and plumbing equipment to the

elements and put the equipment at risk for freezing and bursting when the

outside temperature fell below freezing.6 Groses’ Answer, New Matter and

Counterclaim, 3/25/14, at ¶ 6.

        The Januseys filed a motion for judgment on the pleadings in June 2014;

the court denied the motion in January 2015. In July 2016, the Januseys filed

a motion for summary judgment claiming that the Lot sales were completely

separate and distinct transactions; the court denied the motion on July 19,

2016. On April 7, 2017, the Januseys filed motions in limine and a second

motion for summary judgment. The Januseys’ motions in limine sought, in

part, to exclude the proposed testimony and expert report of David J. Bizzak,
____________________________________________


4   68 Pa.C.S. §§ 7301-7315.

5   73 P.S. §§ 201-1-201-9.3.

6 The initial residence, built by Mr. Janusey’s company, was designed and
constructed to include a utility chase that ran through the residence. The
original residence, however burned to the ground by an act of arson in May
2001. The construction of a second home, the one purchased by the Groses,
did not include a utility chase.




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a professional engineer, who opined that a material defect7 existed in the

residence as a result of improperly placed water supply pipes. The Januseys

argued that without that evidence, the Groses could not prove the existence

of a material defect under RESDL to justify withholding payment for Lot 2. On

May 10, 2017, the trial court denied the motions in limine, and, concomitantly,

the summary judgment motion.

       The case proceed to a jury trial, after which the jury found in favor of

the Groses, concluding that they were entitled to rescission of the entire

transaction8 (Lot 1 and Lot 2), punitive damages (for all legal fees) due to the

Januseys’ fraudulent representations, and $4,952.69 in costs and expenses

related to the sale of the property. The jury made the following findings of

fact: (1) the sale of Lot 2 was not a separate transaction from the sale of Lot

1; (2) the Groses were not justified in withholding payment for Lot 2; (3) the

Januseys violated the RESDL and UTPCPL; (4) the Januseys breached the

agreements of sale; and (5) the Januseys made fraudulent and negligent

misrepresentations to the Groses.          Verdict and Interrogatories to the Jury,

9/22/17, at 1-3. The Januseys filed post-trial motions and the Groses filed a

motion for treble damages, attorney’s fees and expenses for costs related to

____________________________________________


7 The agreement for Lot 1, which included the residence, provided that the
“Sellers have no knowledge, nor have they received any notice, of any
material defect in any of the Property.” Agreement of Sale (Lot I), 5/13/13,
at ¶ 5(d).

8 This not only included returning the property to the Januseys, but also all of
the money that the Groses received from the gas lease.

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the transaction. The court granted the Groses’ motion in part, awarding them

$114,848.88 in attorney’s fees and transaction expenses, and $308,976.02

for attorney’s fees and litigation expenses under the UTPCPL, and denied it in

part, declining to award the Groses treble damages. The court denied the

Januseys’ post-trial motion.     The parties filed a timely appeal and cross-

appeal, as well as court-ordered Pa.R.A.P. 1925(b) concise statements of

errors complained of on appeal.

      On appeal, the Januseys present the following issues for our

consideration:

      (1)   Did the trial court abuse its discretion by failing to grant
            summary judgment, or decide as a matter of law, that the
            sale of the 80-acre, unimproved Lot 2 was a separate
            transaction from the sale of the residential Lot 1?

      (2)   Did the trial court abuse its discretion by permitting the
            [Groses] to pursue rescission and breach of contract claims
            simultaneously at trial?

Appellants’ Brief, at 4. On cross-appeal, the Groses raise the following claims:

      (1)   Did the [trial] court err in striking the jury’s award of
            punitive damages to the Groses for the Januseys’ fraudulent
            misrepresentation?

      (2)   Did the [trial] court err in failing to award treble damages
            under the UTPCPL, 73 Pa.C.S. §§ 201-1[,] et seq.?

Cross-Appellants’ Brief, at 5.

      The Januseys claim that the trial court erred in denying their motion for

summary judgment, arguing that the sale of Lot 2 was a separate transaction

from the sale of Lot 1. Assuming the two transactions were separate, the

Januseys contend that the agreement for Lot 2 is unaffected by the agreement


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for Lot 1 and that an alleged material defect in the house (Lot 1) is irrelevant

to their action in assumpsit on the term note for Lot 2.

      The standard of review for motions for summary judgment is
      well[-]settled. Pursuant to Pa.R.C.P. 1035.2(2), a trial court shall
      enter judgment if, after the completion of discovery, an adverse
      party who will bear the burden of proof at trial fails to produce
      evidence of facts essential to the cause of action or defense which
      in a jury trial would require the issues to be submitted to the jury.
      Summary judgment is properly granted when the record contains
      insufficient evidence of facts to make out a prima facie cause of
      action or defense, and, therefore, there is no issue to be submitted
      to a jury. A motion for summary judgment is based on an
      evidentiary record that entitles the moving party to a judgment as
      a matter of law. In considering the merits of a motion for
      summary judgment, a court views the record in the light most
      favorable to the nonmoving party, and all doubts as to the
      existence of a genuine issue of material fact must be resolved
      against the moving party. The party with the burden of proof on
      an issue may not rely merely on the allegations in its pleadings,
      but rather must produce evidence of facts demonstrating a
      genuine issue for trial.

Phillips v. Selig, 959 A.2d 420, 427 (Pa. Super. 2008) (citations and

headnotes omitted). “An appellate court may reverse the granting of a motion

for summary judgment if there has been an error of law or an abuse of

discretion. Notwithstanding, the scope of review is plenary and the appellate

court shall apply the same standard for summary judgment as the trial court.”

Id. at 428 (citations omitted).

      In its memorandum order denying the Januseys’ summary judgment

motion, the trial judge, the Honorable Katherine B. Emery, found that the

court was bound by the coordinate jurisdiction rule where a prior trial court

judge, the Honorable Debbie O’Dell Seneca, had denied the Januseys’ motion



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J-A26020-19



for judgment on the pleadings based on the same legal argument that the sale

of the lots consisted of two separate transactions. Judge Emery concluded

that although additional evidence existed now, in the form of Dean Grose’s

deposition testimony, this information did not “contain[ any] new information

material to the case.” Memorandum Order, 7/19/16.

      Generally, the coordinate jurisdiction rule commands that upon transfer

of a matter between trial judges of coordinate jurisdiction, a transferee trial

judge may not alter resolution of a legal question previously decided by a

transferor trial judge. Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa.

1995); see also Riccio v. American Republic Insurance Co., 705 A.2d

422, 425 (Pa. 1997). More simply stated, judges of coordinate jurisdiction

should not overrule each other’s decisions. Id.; Okkerse v. Howe, 556 A.2d

827, 831 (Pa. 1989).    Some exceptions to the general rule, however, exist

such as when there has been a substantial change in the facts or evidence or

where “the prior holding was clearly erroneous and would create a manifest

injustice if followed.” Starr, 664 A.2d at 1332. In Goldey v. Trustees of

University of Pennsylvania, 675 A.2d 264 (Pa. 1996), our Supreme Court

also noted that

      [w]here motions differ in kind, as preliminary objections differ
      from motions for judgment on the pleadings, which differ from
      motions for summary judgment, a judge ruling on a later motion
      is not precluded from granting relief although another judge has
      denied an earlier motion. However, a later motion should not be
      entertained or granted when a motion of the same kind has
      previously been denied, unless intervening changes in facts or the
      law clearly warrant a new look at the question.


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Id. at 267 (emphasis in original).

       Here, the motions, which raised identical issues and were based on

virtually the exact same evidence, were not “of the same kind” as referenced

in Goldey.      Moreover, in this case where Judge O’Dell Seneca denied the

Januseys’ motion for judgment on the pleadings by a single order and without

any accompanying opinion or legal explanation, we are hesitant to simply rely

upon Judge Emery’s blanket statement that she cannot reconsider the decision

based upon the coordinate jurisdiction rule.

       However, after reviewing the record, we find that the court properly

denied summary judgment.9            First, the question of the interpretation of a

contract is often a jury question. Kripp v. Kripp, 849 A.2d 1159, 1164 (Pa.

2004) (under Pennsylvania law, interpretation of contract is matter for fact

finder when contract is ambiguous).            Here, the Januseys contend that the

Groses defaulted on the Term Note, where the Term Note and the Agreement

for Lot 2 was a separate transaction from the Agreement for Lot 1.             The

Groses, on the other hand, contend that the Lot 1 and Lot 2 Agreements

represented a single transaction and that because the Januseys concealed a

defect in the house that caused the Groses harm, they were justified in

withholding payment due on Lot 2.


____________________________________________


9We are not limited by the trial court’s rationale and may affirm its decision
on any basis. Blumenstock v. Gibson, 811 A.2d 1029, 1033 (Pa. Super.
2002).



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      Because the agreements, on their faces, do not clarify the issue, they

are considered ambiguous. Hutchinson v. Sunbeam Coal Corp., 519 A.2d

385, 390 (Pa. 1986) (contract is ambiguous if reasonably susceptible to

different constructions and capable of being understood in more than one

sense). As a result, in order to understand the circumstances under which

the contract was made, the fact finder had to examine the intent of the parties.

Thus, where the case involved a material question of fact which needed to be

resolved by the jury, summary judgment was properly denied. Windows v.

Erie Ins. Exch., 161 A.3d 953 (Pa. Super. 2017), citing Metzger v. Clifford

Realty Corp., 476 A.2d 1 (Pa. Super. 1984).

      In their next issue on appeal, the Januseys claim the trial court abused

its discretion when it permitted the Groses to pursue rescission and breach of

contract claims simultaneously at trial.

      We first note that our Court has held that a party is permitted to plead

and pursue alternative and inconsistent claims seeking remedies of damages

for breach of contract and for rescission of a lease. Scheartz v. Rockey, 932

A.2d 885 (Pa. 2007).     Moreover, here the underlying agreements of sale

provided for rescission as a contractual remedy, and not an equitable remedy.

Thus, we find no merit to this issue.

      On cross-appeal, the Groses claim that the trial court improperly struck

the award of punitive damages after the jury determined that the Januseys

committed fraudulent misrepresentation.




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        Here, the jury determined that the Groses were entitled to punitive

damages for “ALL legal fees.” See Verdict and Interrogatories to the Jury,

9/22/17, at 3 (emphasis in original). In the brief supporting their motion for

attorney’s fees, costs and treble damages, the Groses sought “an award of all

their transaction costs associated with the agreement to purchase the

Residence, totaling $114,848.58, per the jury’s punitive damages award.”

Groses’ Brief in Support of Motion for Award of Treble Damages, Attorneys’

Fees and Costs, 10/2/17, at 2 (emphasis added). The Groses also argued in

their motion that the court should “mold the final judgment entered in th[e]

case to conform to the verdict rendered by including all of the Groses’

attorneys’ fees and costs expended to enter the transaction and litigate this

case.” Id. at 4; see also id. (Argument III, Section A. of Groses’ motion

titled “All of the Groses’ Attorney’s Fees and Costs were Awarded by the Jury

as Punitive Damages.”)

        Instantly, the court did exactly what the Groses asked for – it awarded

them reasonable attorneys’ fees and costs under the UTPCPL, as well as all of

their transaction costs associated with the purchase agreement. The court’s

total award was broken down as follows: $114,848.58 in attorneys’ fees and

expenses associated with entering into the transaction and $308,967.02 in

attorneys’ fees, costs and expert fees under the UTPCPL.10 See Trial Court

____________________________________________


10   See 73 Pa.C.S.A. § 201-9.2(a).




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Pa.R.A.P. 1925(a) Opinion, 6/3/19, at 1-2 (emphasis added). Because the

court awarded the Groses the exact amount of damages they sought, we find

this claim meritless.11

       In their final claim on cross-appeal, the Groses assert that they were

entitled to treble damages under the UTPCPL where the Januseys committed

fraudulent misrepresentation.

       Under the UTPCPL, “[t]he court may, in its discretion, award up to three

times the actual damages sustained, but not less than one hundred dollars

($100), and may provide such additional relief as it deems necessary or

proper.    The court may award to the plaintiff, in addition to other relief

provided in this section, costs and reasonable attorney fees.” 73 Pa.C.S.A. §

201-9.2(a). In Johnson v. Hyundai Motor Am., 698 A.2d 631 (Pa. Super.

1997), our Court stated:

       It is undisputed that the imposition of exemplary or treble
       damages is essentially punitive in nature. The law of Pennsylvania
       clearly provides, however, that punitive damages are not
       recoverable in an action solely based upon breach of contract.
       Thorsen v. Iron and Glass Bank, [] 476 A.2d 928, 932 ([Pa.
       Super.] 1984).       See Standard Pipeline Coating Co. v.
       Solomon & Teslovich, Inc., [] 496 A.2d 840, 844 ([Pa. Super.]
       1985) (holding “punitive damages will not be assessed for mere
       breach of contractual duties, where no recognized trespass cause
       of action . . . arose out of the same transaction[.]”). Whereas in
       contract actions, damages are awarded to compensate an injured
       party for the loss suffered due to the breach, Empire Properties,
       Inc. v. Equireal Inc., [] 674 A.2d 297, 304 ([Pa. Super.] 1996),

____________________________________________


11The Groses admit that this claim is moot to the extent that the Januseys do
not argue the issue of attorneys’ fees under the UTPCPL or as punitive
damages on appeal. See Cross-Appellants’ Brief, at 3.

                                          - 12 -
J-A26020-19


      the purpose of punitive damages is to punish outrageous and
      egregious conduct done in a reckless disregard of another’s rights;
      it serves a deterrence as well as a punishment function. Schecter
      v. Watkins, [] 577 A.2d 585, 595 ([Pa. Super.] 1990). Therefore,
      under the law of this Commonwealth, a court may award punitive
      damages only if an actor’s conduct was malicious, wanton, willful,
      oppressive, or exhibited a reckless indifference to the rights of
      others. SHV Coal, Inc. v. Continental Grain Co., [] 587 A.2d
      702, 704 ([Pa.] 1991); Rizzo v. Haines, [] 555 A.2d 58 ([Pa.]
      1989). It is precisely these well-grounded principles of law that
      we expect the trial courts will follow when, as in the instant case,
      exercising discretion and awarding treble damages for breach of
      contract/warranty under the UTPCPL.

Id. at 639-40.

      In Schwartz v. Rockey, 932 A.2d 885, 898 (Pa. 2007), the Court

concluded that “as a matter of statutory construction, [] the court’s discretion

to treble damages under the UTPCPL should not be closely constrained by the

common-law requirements associated with the award of punitive damages.”

Id. at 898.   The Schwartz Court went on to state that “awards of treble

damages may be reviewed by appellate courts for rationality [and, c]entrally,

courts of original jurisdiction should focus on the presence of intentional or

reckless, wrongful conduct, as to which an award of treble damages would be

consistent with, and in furtherance of, the remedial purposes of the UTPCPL.”

Id. (emphasis added).

      Here, the jury found that the Januseys made fraudulent and negligent

misrepresentations to the Groses in the underlying property transfer. While

the court declined to treble the damages in the case, it awarded attorneys’

fees in excess of $400,000. Under such circumstances, we conclude that the

trial court’s order denying treble damages was grounded in rationality where


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there was no specific finding that the Januseys’ conduct rose to the level of

egregious conduct warranting treble damages under the UTPCPL, and where

the Groses were otherwise adequately compensated for their fees and

expenses incurred in defending the lawsuit. Schwartz, supra. Accordingly,

we find no abuse of discretion. Johnson, supra.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/2019




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