J-A26041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RAY M. KREIDER                                   IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

DAVID CORREIA; OAK TREE REAL
ESTATE, LLC; MONUMENT STREET
FUNDING, LLC; AND FIRST AMERICAN
TITLE INSURANCE COMPANY

                                                    No. 2111 MDA 2016


              Appeal from the Order Entered December 14, 2016
              In the Court of Common Pleas of Lancaster County
                      Civil Division at No(s): CI-09-07984


BEFORE: BOWES, J., OLSON, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                        FILED JANUARY 11, 2018

      Appellant, Ray M. Kreider, appeals from the trial court’s orders entered

April 1, 2016, July 25, 2016, and December 14, 2016, granting summary

judgment in favor of Appellees, David Correia; Oak Tree Real Estate, LLC

(“Oak Tree”); Monument Street Funding, LLC (“Monument”); and First

American Title Insurance Company (“First American”). After careful review,

we affirm and grant Appellees’ motion to dismiss Appellant’s breach of

fiduciary duty/negligence claims for waiver.

      We adopt the following statement of facts and procedural history from

the trial court opinion, which in turn is supported by the record. See Trial

Court Opinion (TCO), 3/15/17, at 2-9. In March 1977, Paul and Barbara Staab
J-A26041-17



acquired a parcel of land (“the Property”) located in Columbia, Pennsylvania,

from Maurice Fitez and Evelyn Beecher Fitez. In August 1986, the Staabs

acquired an adjacent .22-acre parcel of land (“the parcel”) from Evelyn

Beecher Fitez. Subsequent to acquiring both parcels, the Staabs took out a

home equity loan on the Property only. They eventually defaulted on that

mortgage, which was later assigned to Monument, which then commenced a

mortgage foreclosure action.     Following the successful foreclosure of the

Property, Monument purchased it at sheriff’s sale and obtained a sheriff’s

deed. It then placed the Property on the market to be sold.

     Appellant approached Mr. Correia, an agent in the employ of Oak Tree,

about purchasing the Property.    Mr. Correia incorrectly informed Appellant

that a two-car garage and surrounding land were part of the Property, though

in reality, they were attached to the Parcel. An MLS listing also incorrectly

stated that the Property consisted of .68 acres and included a two-car garage.

In June 2007, Appellant entered a written contract with Mr. Correia to

purchase the Property from Monument for $52,000.00. At that time, he did

not review the deed.

     Several months later, the Staabs sold the Parcel to Joseph Ritchey. In

September 2007, Mr. Ritchey informed Appellant that the garage was part of

his property. Appellant went to the courthouse and reviewed the title record

for the first time and subsequently gave possession of the garage to Mr.

Ritchey. In August 2008, for the first time, Appellant had a survey of the




                                    -2-
J-A26041-17



Property conducted. Appellant discovered that the Parcel contained a twenty-

two-foot overlap with the Property in addition to the problems with the garage.

       In April 2009, Appellant received a cease and desist order from a zoning

board officer, as the foreclosure had created two separate parcels and a

resulting impermissible decrease in lot size. He appealed to the zoning board

and simultaneously filed an action to quiet title against Mr. Ritchey and a writ

of summons against Mr. Correia and Oak Tree.1            While Appellant was

unsuccessful before the zoning board, the Court of Common Pleas of Lancaster

County reversed the board’s ruling.

       Meanwhile, the lawsuits against Appellees proceeded. First American

and Monument filed answers with new matters. Monument asserted a cross-

claim against Mr. Correia and Oak Tree, asserting that if the claims in the

complaint were found to be true, Mr. Correia and Oak Tree were solely liable.

Mr. Correia and Oak Tree filed an answer to the cross-claim and their own

cross-claim against Monument. Two years then passed, the suits languished,

and were eventually dismissed due to lack of activity on the docket. After the

actions were reinstated, the parties began filing motions seeking summary

judgment.

       Monument filed a motion for summary judgment against Appellant and

a cross-motion against Mr. Correia and Oak Tree. Mr. Correia and Oak Tree

responded, as did Appellant. Monument filed a reply. First American filed a
____________________________________________


1Monument was joined as a defendant two years later by writ of summons,
and First American was joined as a defendant with the filing of the complaint.

                                           -3-
J-A26041-17



motion for summary judgment and Appellant filed a reply.         Prior to the

resolution of the motions, the parties unsuccessfully attempted mediation.

Following the conclusion of mediation, the court entered summary judgment

in favor of First American. The court entered summary judgment in favor of

Monument and against Appellant, and denied Monument’s cross-motion

against Mr. Correia and Oak Tree.

      Mr. Correia and Oak Tree then filed a motion for summary judgment

against Appellant.    When Appellant did not respond, the court entered

summary judgment in favor of Mr. Correia and Oak Tree. However, Appellant

filed an untimely answer to the motion, essentially requesting reconsideration

of the order and averring that he had miscalculated the number of days to file

a response. The court granted his request but ultimately granted summary

judgment in favor of Mr. Correia and Oak Tree.

      Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.        The trial court issued a

responsive opinion.

      On appeal, Appellant presents the following questions for our review,

which we have reworded for clarity:

      1. Did the lower court commit an error of law and/or abuse its
      discretion when it granted Monument Street Funding, LLC’s
      motion for summary judgment and dismissed the breach of
      contract claims based upon the merger doctrine and the express
      language of the deed, and dismissed Appellant’s tort claims as
      barred by the statute of limitations?




                                      -4-
J-A26041-17


      2. Did the lower court commit an error of law and/or abuse its
      discretion when it granted David Correia’s and Oak Tree Real
      Estate, LLC’s motion for summary judgment and dismissed
      Appellant’s breach of contract claims based upon the express
      language of the agreement of sale and failing to apply the parol
      evidence rule, and dismissed Appellant’s breach of fiduciary duty
      claim?

      3. Did the lower court commit an error of law and/or abuse its
      discretion when it granted First American Title Insurance
      Company’s motion for summary judgment and dismissed
      Appellant’s breach of contract claim based upon the express
      language of the agreement of sale.

See Appellant’s Brief at 9-10 (unnecessary capitalization omitted).

      Our scope and standard of review of an order granting summary

judgment are well-settled.

      [S]ummary judgment is properly granted where there is no
      genuine issue as to any material fact and ... the moving party is
      entitled to a judgment as a matter of law. Summary judgment
      may be granted only where the right is clear and free from doubt.
      The moving party has the burden of proving that there is no
      genuine issue of material fact. The record and any inferences
      therefrom must be viewed in the light most favorable to the
      nonmoving party, and any doubt must be resolved against the
      moving party. The trial court will be overturned on the entry of
      summary judgment only if there has been an error of law or a
      clear abuse of discretion.

First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 691 (Pa. Super.

1995) (internal citations and quotations omitted).

      After thorough review of the record, the briefs of the parties, the

applicable law, and the well-researched opinion of the Honorable Jeffrey D.

Wright, we conclude Appellant’s issues merit no relief. The trial court opinion

comprehensively discusses and properly disposes of the questions presented.

See TCO at 9-23 (finding: (1) Appellant’s breach of contract claim against

                                     -5-
J-A26041-17



Monument is barred by merger doctrine and the express language of the deed;

Appellant’s tort claims against Monument are barred by the statute of

limitations as at the latest, the statute began to run in August 2008; (2)

summary judgment was properly granted in favor of Mr. Correia and Oak Tree

as to the breach of contract claim based on the express language of the sales

agreement and because of the merger doctrine; (3) summary judgment was

properly granted as to the breach of fiduciary duty claim pursuant to the Real

Estate Licensing and Registration Act (RELRA), since certain language in the

deed could not be said to be the cause of Appellant’s harm; and (4) summary

judgment was properly granted in favor of First American because it was a

party to the title insurance policy, and even if it was not, the policy expressly

excludes defects that a survey would have shown).2 Accordingly, we affirm

on the basis of the trial court’s opinion.




____________________________________________


2 In Appellant’s reply brief, he argued that the breach of fiduciary duty claim
against Mr. Correia was not a private cause of action pursuant to RELRA, but
instead, premised upon a traditional breach of fiduciary duty/negligence. In
response Mr. Correia and Oak Tree filed a motion to dismiss this issue for
waiver, as in the lower court, the only claim preserved in Appellant’s Pa.R.A.P.
1925(b) statement was that the court did not apply 63 P.S. § 455.606, the
section of RELRA relating to relationships between brokers and consumers of
real estate services.

As Appellant preserved only this issue in his 1925(b), and the court addressed
only this issue, we find Appellant’s common law claims waived for failure to
preserve them in the lower court. See Pa.R.A.P. 302 (“Issues not raised in
the lower court are waived and cannot be raised for the first time on appeal).
Accordingly, we grant Appellees’ motion.

                                           -6-
J-A26041-17



      Application   to   dismiss   granted.   Order   affirmed.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/2018




                                      -7-
                                                                       Circulated 12/15/2017 10:26 AM




IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                       CIVIL ACTION - LAW


RAY M. KREIDER

        VS.                                        Cl-09-07984

DAVID CORREIA, OAK TREE REAL                                                     r-··
ESTATE, LLC, MONUMENT STREET                                                                  :. :,
FUNDING, LLC and FIRST AMERICAN
TITLE INSURANCE COMPANY                                                                        --�
                                                                                        .-·     --··
                                                                                                 \ .. ":·


                                     OPINION                                                       ,   . ..,
                                                                                                   c>



BY: WRIGHT, J.                                                           March     JL, 2017
      This Opinion is written pursuant   to Rule   1925(a) of the Pennsylvania Rules of

Appellate Procedure. Appellant, Ray M. Kreider, appeals this Court's December 14,

2016, July 25, 2016, and April 1, 2016 Orders granting Summary Judgment in favor of

Defendants and against Plaintiff. Plaintiff was ordered to submit a Concise Statement of

Errors Complained of on Appeal, which was timely received. Upon review of the

Statement, the record, and Defendants First American Title Insurance Company's (First

American's) and Monument Street Funding, LLC's (Monument's) responses thereto, I

maintain that my Orders granting summary judgment were proper, and submit this

Opinion accordingly.




                                              1


                                                                                                               l202a
                                     BACKGROUND

       Plaintiff Ray M. Kreider purchased a piece of real property (the Property), but did

not review the title nor conduct a survey prior to purchasing it. As a result, he received

less than he expected and brought a series of lawsuits. The relevant history is as

follows:


       Paul and Barbara Staab owned two pieces of real property in Columbia

Pennsylvania. (Opinion, Land Use Appeal, Cl-09-14813, 06/28/10). The Staabs

acquired the first parcel (the Property) from Maurice E. Fitez and Evelyn Beecher Fitez

in March, 1977. (Motion of Defendant Monument, 07/23/15, Exhibit M, Deed). The

Staabs then acquired the second, adjacent, .22-acre property (the Ritchey Parcel), nine

(9) years later, in August, 1986, from Evelyn Beecher Fitez. (!Q., Exhibit N, Deed).


       After obtaining both the Property and the Ritchey Parcel, the Staabs took out a

home equity loan on only the Property through First Union Home Equity Bank. (!Q.,

Exhib�t 0, Mortgage dated 04/16/1986). The Staabs eventually defaulted on that

Mortgage, which was assigned to Defendant Monument, who commenced a foreclosure

action in the Lancaster County Court of Common Pleas. (Cl-05-08727). Monument

succeeded in foreclosing on the Property, and purchased it at the sheriff's sale,

obtaining a Sheriff's Deed to the Property. (Motion for Defendant Monument, 07/23/15,

Exhibit S, Sheriffs Deed dated 02/28/07) (legal description also matching the previous

deeds). Thereafter, Plaintiff purchased the Property from Monument through an agent,

Defendant Correia, who worked for Defendant Oak Tree Real Estate, LLC. [hereinafter,

Oak Tree). (Complaint, 12/08/11).

                                              2

                                                                                             1203a
      Before Plaintiff purchased the Property, Defendant Correia incorrectly told

Plaintiff that a two-car garage and surrounding land, which were actually part of the

Ritchey Parcel, were part of the Property.   J.s!. Plaintiff also read,   in an MLS listing, that

the Property consisted of .68 acres and included a two-car garage. Id. (Exhibit A).

Based on these beliefs, around June 7, 2007, Plaintiff entered a written contract with

Correia to purchase the property from Monument for $52,000. !g. (Exhibit B, Agreement

of Sale). The purchase was finalized shortly thereafter, the deed was signed, and

Plaintiff purchased title insurance on the property from Defendant First American. Id.

(Exhibit C) (Exhibit D) (Deed dated June 29, 2007) (policy dated July 24, 2007). Plaintiff

did not however, review the deed until several months later. (Motion of Defendant

Monument Street Funding, LLC, for Summary Judgment, 6/23/15, Exhibit L, Oral

Deposition of Ray M. Kreider at 37) (Hereinafter, Kreider Deposition)


       Several months after Plaintiff's closing, the Staabs sold their remaining, adjacent

parcel, to Joseph C. Ritchey. (Complaint, 12/08/11, Exhibit E) (Deed from the Staabs to

the Rticheys, dated 09/27/07, recorded 09/28/07); (Opinion, Land Use Appeal, Cl-09-

14813, 06/28/10). After the sale of that parcel, in September 2007, Mr. Ritchey informed

Plaintiff that the garage was actually part of his property. (Opinion Cl-09-14813,

06/28/10); (Complaint, 12/08/\1); (Kreider Deposition, at 37). Upon speaking with Mr.

Ritchey, Plaintiff went to the courthouse and reviewed the title record for the first time.

!Q. After reviewing the record, Plaintiff gave Mr. Ritchey possession of the garage.

(Opinion Cl-09-14813, 06/28/1 O); (Kreider Deposition at 35-37). Then, also for the first

time, in August 2008, Plaintiff had a survey of the Property conducted. (Kreider

Deposition, at 152-53). Upon receiving the results, Plaintiff discovered that, in addition
                                                3


                                                                                                    1204a
to not owning the garage, deeds to the Property and the Ritchey Parcel contained a

twenty-two-foot overlap. lg.


        After receiving the survey results, Plaintiff took no further action until April 2009,

when he received a Cease and Desist Order from the local Zoning Officer for a

violation. (Opinion, Land Use Appeal, Cl-09-14813, 06/28/10) (quoting Cease and

Desist Order issued April, 2009).1 The violation occurred because the foreclosure on the

Property created two separate parcels, causing an impermissible decrease in lot size.

lg_. In response to the Cease and Desist Order, Plaintiff promptly appealed to the Zoning

Hearing Board (ZHB). (Notice of Appeal, Cl-09-14813, 10/08/09) (averring that the

appeal to the ZHB was filed in April, 2009). After filing the appeal to the ZHB, Plaintiff

also filed a Quiet Title action against Ritchey in the Lancaster County Court of Common

Pleas, and simultaneously commenced the immediate action by filing a Praecipe for

Writ of Summons against Defendants Correia and Oak Tree. (Complaint, Cl-09-07922,

05/21/09). (Praecipe for Writ of Summons, Cl-09-07984, 05/21/09).2


        About four months after he filed the Quiet Title action and Writ of Summons, the

ZHB denied Plaintiff's appeal, which Plaintiff then appealed to the Lancaster County

Court of Common Pleas (Notice of Appeal, Cl-09-14813, 10/8/08) (appeal denied by

ZHB 09/08/09). In that appeal, .the Honorable Howard F. Knisely reversed the ZHB's




1
 Plaintiff's Complaint avers that his response to discovering the overlap was to file a Quiet Title action in the
Lancaster County Court of Common Pleas, but neglects to mention that the action was not filed until a year-and-a-
half later, and only after receiving the cease and desist order.
2
 Defendant Monument was added almost two years later by Writ of Summons filed April 1, 2011, and then
Defendant First American with the filing of the Complaint. (Praecipe to Amend and Reissue Writ of Summons, Cl-
09-07984, 04/01/11); (Complaint, Cl-09-07984, 12/ 08/11).
                                                       4


                                                                                                                    1205a
        Returning to the instant action, after Plaintiff filed the underlying Complaint,

Defendants First American and Monument filed Answers with New Matter. (Answer,

First American, 02/10/12); (Answer, Monument, 02/13/12). Monument's Answer also

asserted a cross-claim against Defendants Correia and Oak Tree, asserting that if the

claims in Plaintiff's Complaint were found to be true, that Correia and Oak Tree were

solely liable. (Answer, Monument, 02/13/12). Plaintiff responded with Answers to the

New Matter raised in both First American's and Monument's Answers. (Answer to

Monument's New Matter, 03/09/12); (Answer to First American's New Matter, 03/09/12).

Defendants Correia and Oak Tree then filed an Answer to Monument's cross-claim,

followed by an Answer and New Matter to Plaintiff's Complaint, which included their own

cross-claim against Monument. (Answer to Cross-Claim, 05/25/12); (Answer to

Complaint and Cross-Claim, 06/20/12) (asserting that the damages sustained by

Plaintiff, if any, were at least partially the fault of Defendant Monument). Monument then

filed a Reply to Correia and Oak Tree's cross-claim, and Plaintiff filed an answer to

Correia and Oak Tree's New Matter. (Reply, Monument, 07/06/12); (Answer, Plaintiff,

07/20/12).


        Over two years then passed with no new filings. Accordingly, this Court issued a

per curiam order terminating the proceeding due to Plaintiff's failure to file a Statement

of Intention to Proceed and for lack of activity on the docket. (Order, 01/05/15).5 Plaintiff

then filed a Petition to Reinstate, which was granted by the Honorable David L.

Ashworth. (Petition, 01/30/15); (Order, 02/20/15). Defendant Monument subsequently



5
 Citing Pa.R.J.A. 1901 ("Where a matter has been inactive for an unreasonable period of time, the tribunal, on its
own motion, shall enter an appropriate order terminating the matter.").
                                                         6


                                                                                                                     l206a
filed a Motion and supporting brief for Summary Judgment against Plaintiff, including a

cross-motion against Defendants Correia and Oak Tree. (Motion, 07/23/15); (Brief,

07/25/15). Defendants Correia and Oak Tree responded with an Answer and Brief in

support thereof (Answer, 08/20/15); (Brief, 08/20/15), as did Plaintiff (Answer, 09/02/15);

(Brief 09/02/15). Defendant Monument filed a reply, followed by a Praecipe for

Assignment and a Praecipe for Oral Argument, at which point the case was assigned to

me. (Reply, 09/18/15); (Praecipe for Assignment, 9/28/15); (Praecipe for Oral Argument,

09/23/15). Accordingly, Oral Argument was scheduled for December 3, 2015.

(Rescheduling Order, 11/04/15).6 Before the scheduled Oral Argument, I also received

Defendant First American's Motion for Summary Judgment and Brief thereon, followed

by Plaintiff's Answer thereto and supporting Brief. (Motion for Summary Judgment,

10/23/15); (Answer, 11/23/15); (Brief, 11/23/15).


        During Oral Argument, it became apparent that the parties might be able to

resolve their dispute through mediation, and after conferring with their clients, all

counsel indicated the parties were willing to make a good-faith attempt. I therefore

entered an Order directing that mediation be completed within the next ninety (90) days.

(Order, 12/9/15). The mediator subsequently notified me that while all parties made a

good faith attempt, mediation was not successful."


        Thereafter, upon review of Defendant First American's brief and Plaintiff's

response thereto, I granted Summary Judgment in favor of First American. (Order,


6
  I originally scheduled Oral Argument for November 9, 2015, but it was rescheduled to December 3, 2015, by
agreement of the parties. (Order, 10/1/15); (Rescheduling Order, 11/04/15).
71
    was also informed that the mediation date had to be pushed back to March 21, 2016 due to a scheduling
conflict.
                                                       7

                                                                                                              1207a
04/01/16). Defendant Monument then submitted a Praecipe to assign its July 23, 2015

Motion for Summary Judgment for disposition. (Praecipe, 07/01/16). Upon consideration

of the arguments made at Oral Argument, the corresponding Motions and Briefs by

Plaintiff, Monument, and Correia and Oak Tree, I granted Summary Judgment in favor

of Monument and against Plaintiff, and correspondingly denied judgment against

Correia and Oak Tree. (Order, 07/25/16). Three months later, Defendants Correia and

Oak Tree also filed a Motion for Summary Judgment against Plaintiff, and a

corresponding Brief. (Motion, 10/18/16) (Brief, 10/18/16). The Motion went unanswered,

and I entered an Order in favor of Defendants accordingly. (Order, 11 /23/16).


       Plaintiff then filed an untimely Answer and Brief opposing Correia and Oak Tree's

Motion, followed by a Motion to Quash my Order and Brief in Support thereof. (Answer,

11/25/16); (Brief, 11/25/16); (Motion to Quash, 12/02/16); (Brief, 12/02/16). Defendants

filed a Response and c�:>rresponding Brief. (Response, 12/09/16); (Brief, 12/09/16).

Upon review, I scheduled a conference to determine whether Plaintiff should be granted

an extension. (Order, 12/12/16). At the conference, Plaintiff explained that a·recent

change to the Local Rules caused him to miscalculate the number of days for filing a

response, and requested that, in the interest of justice, I excuse the late filing and

consider the Motion on its merits. I granted that request, but still ultimately found in favor

of Defendants Oak Tree and Correia. (Order, 12/14/16).8 Plaintiff then appealed all my

Orders on Defendants' Motions for Summary Judgment. (Notice of Appeal, 12/28/16).

At my direction, Plaintiff has also timely filed a Concise Statement, and Defendants



8
 Defendants Correia and Oak Tree did not request summary judgment against co-defendant Monument in that
Motion however, and I therefore have not yet technically issued a ruling on that issue. {Motion, 10/18/16).
                                                      8


                                                                                                              1208a
Monument and First American have filed responses thereto. (Order, 01 /04/17);

(Statement, 1/24/17); (Response, Monument, 2/03/17); (Response, First American,

2/03/17).


                                                DISCUSSION


        Plaintiff's Concise Statement of Errors alleges that l committed twelve errors of

law or abuses of discretion in granting Summary Judgment in favor of Defendants.

Below, I have listed each of.Plaintiff's claims in a more concise and organized manner:9


             A. Defendant alleges I erroneously qranted Monument's Motion for

                 Summary Judgment because: I (1) erroneously interpreted the express

                 language of the sales agreement (breach of contract claim); (2)

                 inappropriately applied the Paro! Evidence Rule (breach of contract); (3)

                 erred in holding that the statute of limitations barred Plaintiff's claims

                 against Defendant Monument (tort claims); (4) erred in finding that Plaintiff

                 could not plead an unjust enrichment claim and in the alternative, a breach

                 of contract claim; and (5) erred in holding that Plaintiff's claims against

                 Monument were barred by the merger doctrine (breach of contract).

             B. Plaintiff alleges I erred in granting Defendants Correia and Oak Tree's

                 Motions for Summary Judgment because I: (6) erroneously interpreted the

                 express language of the sales agreement (breach of contract): (7)




9
  I also note Defendant Monument's Response to Plaintiff's Statement, which argues that Plaintiff has waived all
claims for failing to file a sufficiently concise Statement. (Response of Defendant Monument, Cl-09-07984,
                       v.
02/03/17) (citing Jones Jones, 878 A.2d 86, 89-90 (Pa. Super. 2005). I find that Plaintiff's Statement at least
borders on meriting such a waiver.
                                                        9


                                                                                                                   1209a
                 inappropriately applied the Parol Evidence Rule (breach of contract); and

                 (8) erred in holding that Plaintiff's claim for breach of fiduciary duty against

                 Correia and Oak Tree failed to state a cause of action upon which relief

                 may be granted.

             C. Plaintiff alleges I erred in granting Defendant First American's Motion for

                  Summary Judgment because I: (9) misinterpreted the express language of

                 the Sales Agreement; (10) improperly applied the Parol Evidence Rule;

                  (11) erred in holding the statute of limitations barred Plaintiff's claims

                  against First American; and (12) erred in holding that collateral estoppel

                  precluded Plaintiff's claims against First American.


         While Plaintiff characterizes many of the above claims as erroneous "holdings,"

· the only holdings I made in this case were that the Defendants were entitled to

 Summary Judgment-this did not require me to reach all of the above conclusions that

 Plaintiff alleges I erroneously reached in deciding this case. While I understand

 Plaintiff's desire to make alternative arguments to preserve all issues for appeal, it

 would be unnecessarily cumulative for me to address each of these claims individualiy. I

 therefore limit this Opinion to addressing those claims that were relevant to my

 decisions to grant the Summary Judgment Motions.'?



 10
   I also note that Plaintiff's appeal is technically premature. To wit, Defendants Correia and Oak Tree's Motion for
 Summary Judgment made no request as to their cross-claim against Monument. (Motion, 10/18/16). Accordingly, I
 made no ruling on that issue when I granted Defendants' Motion, and a final, appealable Order has therefore yet
 to be issued in this case. See (Order, 07/25/16). "Under Pennsylvania Law, an appeal may only be taken from an
 interlocutory order as of right, from a final order, from a collateral order, or from an interlocutory order by
 permission." Continental Bank v. Andrew Building Co., 648 A.2d 551, 565 (Pa. Super. 1994} (citations omitted). Rule
 341(c) provides that "when multiple parties are involved, the trial court ... may enter a final order as to one or
 more but fewer than all of the claims and parties only upon an express determination that an immediate appeal
                                                         10

                                                                                                                        1210a
           I. Summary Judgment in Favor of Defendant Monument was Proper


         In his Complaint, Plaintiff alleged the following claims against Defendant

Monument: (1) Breach of Contract; (2) Unjust Enrichment; (3) Fraud in the Inducement;

and (4) Conspiracy to Commit fraud. Defendant Monument was entitled to Summary

Judgment on all of these claims for the following reasons:


     A. Plaintiff's breach of contract claim against Monument is barred by merger

                         doctrine and the express language of the deed.


         Plaintiff's breach of contract claim relies on an alleged breach of the Agreement

of Sale,11 and, as Plaintiff first raised in response to Defendant Monument's Motion for

Summary judgment, warranties within the deed itself. (Complaint, Cl-09-07984,

 12/08/11); (Plaintiff's Answer to Defendant, Monument Street Funding, LLC's Motion for

Summary Judgment, 09/02/15).


         As to the Agreement of, Sale. "merger is said to be the rule, except when the

intention of the parties is otherwise, or where the stipulations in the contract sought to

be enforced are collateral to the functions performed by the deed." Caresk Corp v.

Stephen Schifter, Inc., 246 A.2d 365, 370 (Pa. 1968). Therefore, for a breach of contract

claim to succeed based on the Agreement of Sale, Plaintiff must have at least alleged

facts indicating an intent for the terms of the Agreement of Sale to survive



  would facilitate resolution of the entire case." Pa. R.A.P. 341(c) (emphasis added). Since 1 have· not issued an
  "express determination," Plaintiffs appeal is technically premature and should be quashed. In fairness to Plaintiff,
  this issue is purely procedural, since granting Defendants Correia and Oak Tree's Motion against Plaintiff means
  their claims against Defendant Monument, which are contingent on the success of Plaintiffs claims, cannot
. possibly succeed.
11
  Plaintiff repeatedly refers to the Agreement of Sale as the "Sales Agreement." For clarity, I refer to it only as the
"Agreement of Sale," as that is the title of the document in the contract.
                                                          11


                                                                                                                          1211a
notwithstanding the deed. or have pointed to specific, collateral stipulations within the

contract. Plaintiff has made no such averments here, and a review of the Agreement of

Sale itself does not contain any such provisions. Summary Judgment in favor of

Monument was therefore appropriate as to Plaintiffs breach of contract claims.12


         Plaintiff's claim based on the deed itself also fails. Plaintiff asserts in his

Statement that "the deed contains the following covenants and representations: (a) the

metes and bounds of the deed purported to convey a certain amount of acreage which

Defendant did not convey; and (b) the deed was a special warranty deed that

guaranteed good and marketable title to the Property." (Statement at 8). Nowhere in

Plaintiffs Complaint, however, does he state a cause of action against Monurnent

based on a breach of contract or breach of warranty within the deed itself. Accordingly,

Summary Judgment in favor of Monument was appropriate with respect to these

arguments. Regardless, the arguments would be meritless even if Plaintiff were

. permitted to amend his Complaint to include such a claim.


         Addressing argument "(a)," due to its vague wording, I find it unclear exactly what

 argument Plaintiff was trying to assert.13 I believe Plaintiffs position is the following: the

 deed promises a certain amount of acreage, whether Plaintiff believes that acreage is

 the ".09919 Acre," listed in the deed, the .68 Acres he believes he was verbally



 12
    Since the Agreement of Sale merged into the deed, the "3 parcels" language is irrelevant. Therefore, Plaintiffs
 claim that I should have included parol evidence to define that term must also fail.
 13
    Since Plaintiff uses no numbers, it is unclear If Plaintiff is talking about the .68 acres he thought he was getting
 based on Correia's representations, or if he is referring to the ".09919 Acre" listed in the deed. I only presume
 Plaintiff is referring to the ".09919 Acre" description, because, as discussed above, any claim based on the .68
 acres is clearly barred by the merger doctrine, and no other acreage figure is listed on the deed. See also Jones v.
 Jones. 878 A.2d 86, 89-90 (Pa. Super. 2005) (holding issues were waived on appeal due to lengthy and
 unmanageable concise statement).
                                                            12

                                                                                                                           1212a
promised, or some other number entirely, is unclear. The deed lists no acreage other

than the .09919 figure.14 Regardless, Plaintiff's argument appears to be that since there

was an overlap with the Ritchey Parcel, Monument has breached a warranty of title, as

that overlap caused Plaintiff to not get the full acreage to which he believes he was

entitled under the deed. This argument fails no matter what acreage is used, since it

would require us to completely ignore the express exemptions in the deed.


        The deed expressly excludes from warranty any "conditions that would be

 revealed by a physical inspection and survey of the Property," or "presently recorded

 instruments." (Complaint, Exhibit C) (Plaintiff's Deed) (emphasis added). As Judge

 Farina has already concluded, and as Plaintiff has admitted, a survey revealed the

twenty-two-foot overlap. (Memorandum Sur Appeal Pa.R.A.P. 1925(a), Cl-09-07922,

 09/09/1 O); (Kreider Deposition, at 152-53). Also by Plaintiff's own admission, his

 examination of the title record revealed the existence of the Ritcheys' deed, which

 convinced him to give up the garage. (Kreider Deposition at 35-37). Plaintiff has also

. admitted that if he had obtained a survey before purchasing the property, he would have

 discovered that it did not contain the garage. (Kreider Deposition at 107). By

 determining the exact boundary lines of the property, a survey would also have

 undoubtedly revealed whether the .68 or .09919-acre descriptions were accurate.

 Because such "defects" were expressly excluded under the deed, Plaintiff's arguments

 on this point are meritless, and, considering Plaintiffs own admissions, I also question


14
  This issue becomes even more convoluted when we take into account Plaintiff's assertion in the background
section of his Complaint that, due to the loss of the twenty-two-foot overlap, which consists of about .21 acres, his
acreage decreased from .68 acres to .47 acres. Plaintiff's arithmetic therefore reveals that the portion containing
the garage, which was not a part of the .21 acre overlap, could not have ever been part of the original .68-acres.
{Complaint, 1125).
                                                         13


                                                                                                                        1213a
their stncerity." By extension, any such breach being expressly excluded, Plaintiff's

argument "(b)" must also fail.

                   B. Plaintiff's Unjust Enrichment Claim is Barred by the

                                        Existence of the Contract

         Plaintiffs Statement of Errors asserts that I erred by holding that Plaintiff could

not plead "an unjust enrichment claim in the alternative of a breach of contract claim." I

made no such holding. I granted Summary Judgment in favor of Monument on the

unjust enrichment claim because there was no genuine issue of material fact that a

contract between Plaintiff and Defendant actually existed (the deed), and that it covered

the subject matter of the claim. Plaintiff's unjust enrichment claim is therefore precluded·

by the existence of the contract itself, not by virtue of him pleading it in the alternative.16


             C. Plaintiff's Tort Claims Are Barred by the Statute of Limitations


         Plaintiff's other two claims against Monument lie in tort law.17 Plaintiff admits that

he discovered the underlying Issue in September 2007. (Complaint, Cl-09-07984,

 12/8/11, at 3    ,r 19). At the very latest, Plaintiff knew about the overlap and Jack· of
garage through a survey by August, 2008. (Kreider Deposition, at 153); (Statement, at 6



 15
    Plaintiff also cites lulay v. Barnes, 172 Pa. 331 (1896) in his Statement, as vague support for his claim that
 merger doctrine does not preclude his claims. A cursory review of that case reveal it to be factually distinct from
 the case at bar. Briefly, the Court in that cased allowed admission of parol evidence where the deed's legal
 description was illegible, written in German, and where there was a dispute over whether the deed included coal
 rights.
 16
    "Unjust enrichment is not applicable where the relationship among the parties is based on an express
 agreement." Birchwood Lakes Community Ass'n, Inc. v. Comis, 442 A.2d 304, 309 {Pa. Super. 1982). And, "It is clear
 that the doctrine of unjust enrichment does not deal "'-'.ith situations in which the party to be charged has by word
 or deed (no pun intended] legally consented to assume a duty toward the party seeking to charge him. Instead, it
 applies only to situations where there is no legal contract." Wingert v. T.W. Phillips Gas & Oil Co., 157 A.2d 92, 105
 {Pa. 1959).
 17
    Fraud in the inducement, and conspiracy to commit fraud.
                                                          14

                                                                                                                          1214a
,-r 5A). However, Plaintiff did not Amend his Praecipe to include Monument until April 1,
201·1. (Praecipe to Amend and Reissue Writ, Cl-09-07984, 4/1/11); (Statement, at 6        ll
5A). Because the statute of limitations for these claims is two years, I need not look any

further at their merits. See 42 Pa.C.S.A. § 5524(7).


        II. Summary Judgment in favor of Correia and Oak Tree was Proper


       Plaintiff brought the following claims against Defendants Correia and Oak Tree:

(1) Fraud in the Inducement; (2) Conspiracy to Commit Fraud; (3) Breach of Contract;

and (4) Breach of Fiduciary Duty. However, Plaintiff's Statement only alleges I erred as

to his Breach of Contract and Breach of Fiduciary Duty claims. Accordingly, this Opinion

only addresses those two claims.

   A. I Properly Granted Summary Judgment in favor of Defendants Correia and

                  Oak Tree as to Plaintiff's Breach of Contract Claim

       In his Statement, Plaintiff alleges I erred in granting summary judgment on his

breach of contract claims against Correia and Oak Tree because I (a) misinterpreted the

express language of the Sales Agreement; and (b) inappropriately applied the Parol

Evidence Rule. Both claims are meritless.

       In support of the former, Plaintiff avers that Defendants breached duties imposed

by the "express language" of the Agreement of Sale's "Business Relationship

Agreement and Dual Agency [Addendum]." While quoting no language from either

document, Plaintiff asserts that those documents imposed a duty on Defendants to

ensure that Plaintiff was

       purchasing what he thought he was purchasing, to wit accurately and
       specifically identifying the physical attributes of the Property which includes:

                                             15

                                                                                               l215a
      the proper owner; the correct lot size; correctly identifying improvements
      thereon; and any identifying latent defects that may exist. In other words,
      Moving Defendants, as buyer's agent, were responsible to ensure that the
      Sales Agreement properly defined the Property that Plaintiff thought
      (through Defendants' representations) he was buying.

      (Statement, at 4, 'TI 2.A.ii.).

      While citing the Business Relationship Agreement and the Addendum, Plaintiff

neither points to nor quotes any language within the documents to support his reading

of the contract. This may be because nothing in the contract supports his assertion. To

the contrary, the Business Relationship Agreement states the following:

      GENERAL INFORMATION: If a Buyer wants information regarding
      conditions of the property, financial, legal, or other activities, Buyer is
      directed to seek appropriate professional or technical advisors. Unless
      agreed [illegible], the property is sold in its present condition. However,
      Buyer may request that the property be inspected at Buyer's expense.
      Buyer's request for any inspection should be made a part of the inspection
      Addendum to the Agreement of Sale.

(Complaint, Cl-09-07984, Exhibit B, Agreement of Sale, 6(1/07, at 7) (Business

Relationship Agreement).

       Moreover, the Dual Agency Addendum only requires the agent to report any

"known latent defects" to the buyer. lg_. at 8 (Dual Agency Addendum) (emphasis

added). It also specifically includes an indemnification clause:

       Seller and buyer agree to indemnify and hold Broker/Licensee harmless
       against all claims, damages, losses, expenses or liabilities other than
       intentional wrongful acts or violation of Pennsylvania real estate license law
       arising from Broker/Licensee's role as a dual agent. Seller and buyer shall
       have a duty to protect their own interests and should read this Agreement
       and any Agreement of Sale carefully to ensure that they accurately set forth
       the terms which they want included in said agreement.

       JQ. Flipping to the next page, "Addendum #1 ." reveals substantially more

limitations on the agent's liability, including that the Special Warranty Deed would

                                             16

                                                                                          1216a
contain exceptions for "[a]ll presently recorded instruments (other than liens and

conveyances by, through or under the Granter) that affect the Property and any

portion(s) thereof," and "[a]ny conditions that would be .revealed by a physical inspection

and survey of the property." Id. at 9 (Addendum #1 ). Addendum #1 also states that the

Buyer is aware that the Property is being sold in an


        AS IS CONDITION WITHOUT ANY REPRESENTATIONS OR
       WARRANTIES OF ANY KIND OR NATURE. Buyer acknowledges, on
       behalf of itself, its opportunity to inspect and investigate the property and all
       improvements thereon, either independently or through agents of Buyer's
       choosing, and that in purchasing the property Buyer is not relying on any
       statements or representations made by Seller or Seller's agents as to the
       condition of the property and/or any improvements thereon, including, BUT
        NOT LIMITED TO, heating, sewage, roof, foundations ....

!Q. at 10.

Finally, the Agreement of Sale's Integration Clause states the following:

        It is understood that the Buyer has inspected the Property and any personal
        property to be included in the sale or hereby waives the right to do so. He
        has agreed to purchase it as a result of such inspection and not because of
        or in reliance upon any representations which are not included in this
        agreement whether made by any Broker, transaction licensee or any of their
        respective salespeople, employees, officers and/or partners.

(Agreement of Sale, Cl-09-07984, 6/7/07, at 3, ,J 22).

        How Plaintiff believes I misinterpreted this express language is beyond me, and

he has certainly failed to adequately explain what error he believes I made. Accordingly,

 Plaintiff's claims that I erred in my interpretation of the language of the Agreement of

Sale should be dismissed.

        Plaintiff's other claim, that I misapplied the parol evidence rule, is based on the

 use of the term "3-parcels," which Plaintiff avers is ambiguous. First, just as Plaintiff's

claims based on the Agreement of Sale were barred based on merger doctrine as to his
                                               17

                                                                                               1217a
claims against Monument, they are so barred here, as the description of the property is

subsumed directly by the deed. See supra Part I.A. Regardless, the claim fails

notwithstanding application of the merger doctrine.

        Once a writing is determined to be the parties' entire contract, the parol
        evidence rule applies and evidence of any previous oral or written
        negotiations or agreements involving the same subject matter as to the
        contract is almost always inadmissible to explain or vary the terms of the
        contract. One exception to this general rule is that parol evidence may be
        introduced to vary a writing meant to be the parties' entire contract where a
        party avers that a term was omitted from the contract because of fraud,
        accident, or mistake. In addition, where a term in the parties' contract is
        ambiguous, para! evidence is admissible to explain or clarify or resolve the
        ambiguity, irrespective of whether the ambiguity is created by the language
        of the instrument or by extrinsic or collateral circumstances.

Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 437 (Pa. 2004)

(quotations and citations omitted). In his Statement, Plaintiff's arguments only

amount to an assertion that the term "3 parcels" is ambiguous. (Statement, at 4 1{

28). I will therefore limit my analysis to such a claim, and will not address any

possible arguments for claims.of fraud or mistake.18

         While the qeneral rule is that parol evidence is admissible to resolve an

ambiguity, such evidence still must be relevant and material to the contract. See Dahath

Electric Co. v. Suburban Electric Development Co., 2 a.2d 765, 768 (Pa. 1938)

(declining to consider Plaintiff's claims where immaterial and insufficient to affect the

writing). Here, the above-quoted, express language of the contract precludes any

analysis of the term, "3-parcels," as the contract as a whole clearly puts the onus on



18
   I will note, however, that in light of all the disclaimers in the Agreement of Sale, I find it entirely incredible that
Plaintiff's misunderstanding of the term "3-parcels" had any bearing on his entering into the contract. Moreover,
by Plaintiff's own admission, the term was completely unimportant to him, as he "just kind of assumed that they
were just parcels put together into one lot." (Kreider Deposition at 24).
                                                            18

                                                                                                                             1218a
Plaintiff to conduct his own inspection of the property, obtain a survey, and to search the

conveyancing record. Indeed, the outcome here would have be no different for Plaintiff if

I had held a hearing and Defendant Correia had told me what he thought "3 parcels"

meant. The contract would still have made it Plaintiffs responsibility to conduct a title

search and a survey to determine what he was truly getting.19 Accordingly, because
                                     ,;



application of the merger doctrine precludes Plaintiff's parol evidence claim, and

because the term would not be admissible regardless, Summary Judgment in favor of

Defendants was appropriate.

        B. I Properly Granted Defendants Correia and Oak Tree's Summary

        Judgment Motion as to Plaintiff's Breach of Fiduciary Duty Claim

        In his Statement, Plaintiff avers that I erred in granting Defendants' Motion for

Summary Judgment on his Breach of Fiduciary Duty Claim, alleging that Defendant

Correia breached its duty to act properly as a dual agent.

        In support of his argument, Plaintiff cites the following statutory provision: "In

addition to the duties generally required of a licensee as set forth in section 606.1, the

duties of a dual agent include the following: (1) to take no action that is adverse or

detrimental to either party's interest in a transaction.' 63 P.S. § 455.606d(b)(1)." Plaintiff

again relies on the "3 parcels" language in the Agreement of Sale, averring that this

term caused him to incorrectly believe he was getting the garage and surrounding area.

While Plaintiff correctly cites the plain language of the statute, I do not believe our

legislature intended for the rule to impose strict liability on an agent. Rather, a



19
  Obviously, Plaintiff may then have been entitled to some other claims, such as fraud or mistake, but as I
previously noted, Plaintiff does not raise any such parol evidence claim in his Concise Statement.
                                                          19

                                                                                                              1219a
successful claim of breach of fiduciary duty still requires a showing of causation, and

intent or negligence on the part of the agent.

       While there appears to be no case law addressing the particular statutory

provision cited by Plaintiff, the Pennsylvania Standard Civil Jury Instructions are

instructive. They require the Plaintiff to prove the following elements: (1) the defendant

negligently or intentionally failed to act in good faith and solely for the benefit of the

plaintiff, or negligently or intentionally failed to use reasonable care in carrying out his

duties, (2) that Plaintiff suffered injury; and (3) that the aqent's failure was a real factor

in bringing about the plaintiff's injuries. PSCJI § 6.210 (2015). Further, "[iJf the damages

in question would have been sustained even if the agent or fiduciary had not been

negligent or acted wrongfully, then the defendant's conduct would not be a factual

cause in causing the plaintiff's damages." PSCJI § 2.30 (2015).

       While Plaintiff was likely damaged due to a genuine mistake regarding the

characteristics of the property, the record does not support any genuine issue of

material fact as to whether Defendants acted intentionally or negligently. Regardless,

even if Plaintiff genuinely believed that Defendant Correia used the term "3-parcels" to

trick him, there would still be no genuine issue as to whether Plaintiff's injuries were

caused by the use of the term. Indeed, by Plaintiffs own admission, the term had no

effect on him. He "just kind of assumed that they were just parcels put together into one

lot." (Kreider Deposition at 24). By that reasoning, Defendants could have written

anywhere from one to fifteen parcels and it would have made no difference to Plaintiff-

he still would have neglected to obtain a survey, leaving him in the same predicament.

Since the "3 parcels" language cannot genuinely be said to be the cause of Plaintiff's

                                               20

                                                                                                 1220a
harm, Summary Judgment in favor of Defendants Correia and Oak Tree on the Breach

of Fiduciary Duty claim was appropriate.

           Ill. Summarv Judgment in favor of First American Was Proper


      Plaintiff's Complaint states only a breach of contract claim against Defendant

First American. And while Plaintiffs Statement makes four (4) specific averments about

the "holdings" I made in favor of First American on that claim, I need only address

Plaintiffs claims that I erred in my interpretation of the contract and application of the

parol evidence rule.

A. Plaintiff's Argument that I Misinterpreted the Title Insurance Policy is Meritless

       Plaintiff's concise statement avers that I erred in granting Defendant First

American's Motion for Summary Judgment based on my "interpretation of the express

language contained in the Sales Agreement, and/or the application of the parol

evidence rule thereto." (Statement at 5,   il 3).   I believe this was a typographical error, as,

in granting First American's Motion, any language in the Agreement of Sale was

completely irrelevant. First American was only a party to the title insurance policy, not

the Agreement of Sale. (Complaint, Exhibit D, Owner's Title Insurance Policy, Schedule

A). I will assume then that Plaintiff intended to argue that I misinterpreted the title

insurance policy, not the Agreement of Sale.


       In support of this claim, Plaintiff avers in his Statement that First American should

have discovered a defect based on the inclusion of two tax parcel numbers in the

description of the property. In part, the title insurance policy describes the Property as

"Parcel No. 300-99264-0-0000; and Parcel No. 300-98628-0-000." Plaintiff essentially

                                                21

                                                                                                    l22la
argues that because First American's policy insured title to Parcel. No. 300-98628-0-

0000 (hereinafter 98628), and since title to that parcel became in dispute, First

American should indemnify him.20 Plaintiff simultaneously contends that use of the tax

parcel numbers is ambiguous, and that I should have permitted parol evidence to

determine the meaning of the parcel numbers.


        First, to dispose of the parol evidence claim, Plaintiff's argument fails to give full

effect to all the terms of the deed. Any ambiguity created by the Parcel ID Numbers was

resolved within the contract itself through the more precise metes and bounds

description.21 Since the document itself defined the bounds of the property, I properly

excluded any parol evidence to that effect. By extension, Plaintiff's claims relying on the

inclusion of the Parcel ID Numbers also fails, as First American could only have

discovered any discrepancy between the metes and bounds description and the Parcel

ID Numbers through a survey.22 The title insurance policy expressly excludes "Any

encroachments, easements, measurements, variations in area or content, party walls or

other. facts which a correct survey of the premises would show." (Complaint, Exhibit D).




20
   Plaintiff implies in his Statement that he was deprived of all possession of parcel 98628, but a review of the
record seems to indicate that, at most, he was actually deprived of only a portion of it: Ritchey's deed from the
Sta abs does not even contain either Parcel ID number listed in Plaintiffs deed (neither 98628, nor 99264) only a
single, entirely different number: Parcel ID NO. 300-00382-0-0000. (Complaint, Exhibit EJ; moreover, the survey
maps made in conjunction with the quiet title action seem to indicate that Plaintiff remains in possession of the
majority of Parcel ID NO. 98628. (Motion of Defendant Monument Street Funding, LLC, for Summary Judgment, Cl-
09-07984, 6/23/15, Exhibit K, Additional Response #5).
21
   All the language of the deed must be given effect and when the language of the deed is clear and unambiguous
the intent of the parties must be gleaned solely from its language. In re Conveyance of Land Belonging to City of
DuBois, 335 A.2d 352, 358 (Pa. 1975)
22
   While Plaintiff argues the finding is not controlling in this case, I note that our trial court has also previously
reached the same conclusion, holding that the twenty-two-foot overlap could not have been "discovered by any
demonstrable conveyancing error attributable to the deeds to either lot." (Memorandum Sur Appeal, Cl-09-07922,
9/9/10).
                                                          22

                                                                                                                         1222a
As Plaintiff's arguments rely solely on boundary issues expressly excluded by the

policy, Summary Judgment in favor of First American was appropriate.23

                                                    Conclusion

         Stated simply, Plaintiff took a risk when he bought foreclosed real property

without a survey. Indeed, he even signed a contract acknowledging that risk. The law

does not now allow him to shift the burden of that risk to the other parties simply

because the risk didn't pay off. Accordingly, Plaintiff's arguments are meritless, and

Summary Judgment in favor of Defendants was appropriate. Accordingly, I enter the

following:




 23
   Plaintiff makes no claims regarding the chain of title, which, if it contained a defect, First American would
 actually have been obligated to defend. In point of fact, the actual chain of title appears to be clean. Like Plaintiff's
 deed, Monument's Sheriff's Deed granting it the Property from the Staabs contained both tax parcel numbers, and
 both deeds have matching legal descriptions.
                                                            23

                                                                                                                             1223a
