Nicholas, K. v. McDonald, C. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KATHLEEN NICHOLAS-GOULD : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES P. MCDONALD, JR. AND :
SUSANNE MCDONALD :
: No. 1009 EDA 2022
Appellants :
Appeal from the Judgment Entered March 14, 2022
In the Court of Common Pleas of Bucks County Civil Division at No(s):
2018-06816
BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 7, 2023
Charles P. McDonald, Jr., and Susanne McDonald (h/w) (collectively, the
McDonalds/Sellers) appeal from the judgment, entered on the non-jury
verdict in the Court of Common Pleas of Bucks County, in favor of Appellee
Kathleen Nicholas-Gould (Buyer) in the amount of $69,459.30, in this
residential real estate case. After careful review, we affirm on the basis of the
opinions authored by the Honorable Robert O. Baldi.
On March 11, 2018, the parties executed an agreement of sale, in the
amount of $480,000.00, for property (Property) located at 3912 Street Road1
in Buckingham Township, Bucks County. Sellers had purchased the Property
in November 2005 and made extensive improvements to it, including
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1 The home was approximately 50 years old at the time of the sale.
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removing a lower portion of the wall in the corner bedroom in 2013, as well
as converting the garage into a family room in or around 2007.
On February 22, 2018, Sellers executed a Real Estate Disclosure
Statement (Disclosure Statement) that included, among other things, the
following averments:
• Sellers “were not aware of any past or present movement,
shifting, deterioration, or other problems with walls,
foundations, or other structural components[;]”
• Sellers “were not aware of any past of present problems
with driveways, walkways, patios, or retaining walls on the
property[;]”
• Sellers “were not aware of any past or present water
infiltration in the house or other structures, other than the
roof, basement[,] or crawl spaces.”
Seller’s Property Disclosure Statement, 2/22/18, at ¶¶ 7(A), (B), & (C). On
March 11, 2018, Buyer reviewed the Disclosure Statement and testified that
based on the Disclosure Statement she believed that there were no structural
problems with the Property. N.T. Non-Jury Trial, 10/6/20, at 34. Finally,
Buyer testified that she relied upon the representations in the Disclosure
Statement when she decided to purchase the Property. Id. at 32.
Buyer hired a company to inspect the Property prior to closing. The
inspector issued a report, dated March 16, 2018, listing items in/on the
Property that needed corrective work. In particular, the inspection report
noted that there were material defects with regard to the roof drainage system
(a defective rain gutter/downspout) and the chimney (placement of right roof
framing member). See Inspection Report by Steve Maurer of Maurer
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Inspections, LLC, 3/16/18, at 4.2 The inspection report also noted that
everything “appeared functional” in the interior of the Property, except for
certain steps, stairways, balconies, and railings, which Mr. McDonald
subsequently fixed. The remaining problem items were either addressed or
waived by the parties prior to settlement.3
The parties made settlement on the Property on April 30, 2018.4
Following settlement, Buyer “discovered that the Property was riddled with
numerous undisclosed material defects that were neither readily observable
nor discoverable by [Buyer’s] inspector,” including, but not limited to, a
deteriorated and failing front wall on the main level, basement and crawlspace
flooding, cracked floor tiles in the family room, deteriorating masonry on the
outside front of the home, and a failing split-rail backyard fence. Complaint,
11/26/18, at ¶¶ 23-45. In particular, Buyer discovered that the front wall of
one of the bedrooms was bulging and that water was seeping through the
paint. When Buyer cut open a portion of that wall, she found that the studs
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2 The inspection report also noted that further evaluation by a qualified
chimney sweep was required to assess the condition of the chimney’s flues
and vents as the interior chimney and furnace flues could not be inspected
because that was “beyond the scope of a home inspector.” Id.
3A $3,500.00 adjustment in favor of Buyer was applied to the final purchase
price of the Property to account for the cost to repair some of the problems
noted in the inspection report.
4 The parties stipulated that the closing date of the sale was April 30, 2018.
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were so deteriorated from water damage that new studs had been “sistered”5
to the old studs to prevent the wall from completely falling down. In addition,
Buyer noticed that pieces of wood and insulation inside the wall were moist
and contained dark spots/mold, that the drywall or plasterboard was
destroyed, and that the masonry was crumbling.
On November 26, 2018, Buyer filed a complaint against Sellers alleging
violations of the Real Estate Seller Disclosure Act (RESDL)6 and the Unfair
Trade Practices and Consumer Protection Act (UTPCPL).7 In her complaint,
Buyer requested treble damages, as well as attorneys’ fees and costs. Sellers
filed an answer, new matter, and counterclaim asserting breach of contract.8
Following a three-day non-jury trial, held in October 2020,9 Judge Baldi
found in favor of Buyer, concluding that Sellers’ failure to disclose material
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5 “A sister stud is a secondary stud that is installed alongside an existing stud.
It is usually used to reinforce a stud that has been damaged or is bowed in a
manner that compromises its load-bearing capacity.”
https://knowledgeburrow.com/what-does-sistering-mean-in-
construction/#:~:text=What%20does%20Sistering%20mean%20in%20con
struction%3F%20A%20sister,in%20a%20manner%20that%20compromises
%20its%20load-bearing%20capacity. (last visited 12/28/23).
6 68 Pa.C.S.A. §§ 7301-14.
7 73 P.S. § 201-1, et seq.
8 The parties jointly stipulated to the following: Buyer will withdraw a claim
for negligence and Sellers will withdraw their counterclaims for loss of the
bargain and for attorneys’ fees.
9On the second day of trial, Mrs. McDonald testified that she adopted her
husband’s testimony as her own. N.T. Non-Jury Trial, 10/7/20, at 99.
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defects—specifically, moisture damage and deterioration of the front wall of
the Property that extended from a corner bedroom to the family room—
constituted a violation of the RESDL and the UTPCPL.10 The trial judge
awarded Buyer $50,940.00 in compensatory damages11 to cover the costs to
repair the deteriorating walls.
On July 20, 2021, Sellers filed a post-trial motion, which the court
subsequently denied. Buyer filed a post-trial petition seeking attorneys’ fees
and costs under the UTPCPL;12 Sellers filed an answer opposing the petition.
On March 7, 2022, the trial court granted Buyer’s petition, awarding Buyer
$14,838.50 in attorneys’ fees and $3,680.80 in costs. See 73 P.S. § 201.9.2
(statute authorizing recovery of “reasonable” attorneys’ fees and costs for
violation of UTPCPL).
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10 The court specifically found that Sellers reasonably believed that their
installation of a second sump pump corrected any significant flooding issues
in the Property’s basement and crawl space and, thus, Buyer could not recover
for Sellers’ alleged failure to disclose this issue. The court also found that
Buyer could not recover for alleged flooding in the yard of the Property where
no evidence was presented at trial to show that the flooding had a significant
impact on the value of the Property or that it involved an unreasonable risk to
people on the Property. Finally, the court found that Buyer could not recover
on the failing split-rail fence or deteriorating masonry on the front of the
home. See Trial Court Opinion, 7/1/21, at 21.
11Although permissible under the UTPCPL, the court declined to award treble
damages.
12 The parties stipulated that any request that Buyers may have for attorneys’
fees under the UTPCPL would be heard via post-trial motions without the need
for expert testimony as it relates to the reasonableness of attorney rates.
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Sellers filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Sellers present
the following issues for our consideration:
(1) Whether the [trial c]ourt improperly relied on testimony that
the parties and the [trial c]ourt stipulated could not be used
to establish liability[.13]
(2) Whether there was sufficient competent evidence
introduced at trial that the [Sellers] were aware of any
material defects in the front bedroom wall[.]
(3) Whether there was sufficient competent evidence that the
[Sellers’] statement that they were not aware of any
material defects in the front bedroom wall were false,
deceptive, and misleading[.]
(4) Whether there was sufficient competent evidence to support
actual damages in the amount of $50,940.00[.]
(5) Whether the [trial c]ourt erred in applying the UTPCPL to
this case because the [Sellers] are individual consumers
that were [not] and are not in the business of selling homes.
Appellants’ Brief, at 7.
Upon appeal of a non-jury trial verdict, an appellate court
considers the evidence in a light most favorable to the verdict
winner and will reverse the trial court only if its findings of fact
lack the support of competent evidence or its findings are
premised on an error of law. When an appellate court reviews the
findings of the trial judge, the evidence is viewed in the light most
favorable to the victorious party below and all evidence and proper
inferences favorable to that party must be taken as true and all
unfavorable inferences rejected. The court's findings are
especially binding on appeal, where they are based upon the
credibility of the witnesses, unless it appears that the court abused
its discretion or that the court’s findings lack evidentiary support
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13Sellers did not preserve this issue in post-trial motions. Thus, it is waived
on appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are
waived.”).
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or that the court capriciously disbelieved the evidence. It is
inappropriate for an appellate court to make factual
determinations in the face of conflicting evidence.
Phelps v. Caperoon, 190 A.3d 1230, 1243 (Pa. Super. 2018) (citation
omitted).
With regard to issues two and four, Buyer’s expert witness concluded
that water infiltration, not termites as alleged by Sellers, was the cause of
damage to the Property’s walls and that the way to remedy the damage was
to reframe the walls and entirely replace the masonry. See N.T. 10/7/20, at
12-15, id., 10/6/20, at 221-22 (expert testifying sill plate, joists of house,
and studding in front walls were “rotted”); id. at 22-23 (expert testifying no
vapor barrier in front walls to keep moisture from seeping through exterior
stone). Buyer’s contractor testified that a “reasonable and appropriate” cost
to reframe the front walls would be $50,940.00 ($15,260.00 (bedrooms walls)
and $35,680.00 (family room/garage wall)). Id., 10/7/20, at 20-21; see
Plaintiff’s Exhibit 15, at 1-2.
With regard to issue number three, Mr. McDonald admitted at trial that,
in 2013, he opened up the front wall to replace the lower portion of drywall
and, in the process, “sistered” new studs to the old studs. Id., 10/7/20 at
67-68; id. at 85 (Seller testifying inside corner bedroom wall, “There was a
stud that was a little chewed up[.]”). Mr. McDonald also testified that the
drywall inside the wall was “cracked and falling down.” Id., 10/8/20, at 72-
73. Finally, Mr. McDonald testified that when the Property’s garage was
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converted to a family room, he observed the week-long construction process
“about three or four times.” Id., 10/7/20, at 78.
With regard to Sellers’ final issue, we note that the UTPCPL provides for
a private cause of action.
The UTPCPL is Pennsylvania’s consumer protection law, which
serves the purpose of protecting the public from unfair or
deceptive business practices. DeArmitt [v. N.Y. Life Ins. Co.,
73 A.3d 578, 587 (Pa. Super. 2013)]. The UTPCPL explicitly
authorizes a private cause of action for anyone who purchases
goods primarily for personal, family, or household purposes and
“suffers any ascertainable loss of money or property” as a result
of any person employing an unlawful method, act, or practice. 73
P.S. §201-9.2(a).
In order to bring a private cause of action under the UTPCPL, “a
plaintiff must show that he justifiably relied on the defendant’s
wrongful conduct or representation and that he suffered harm as
a result of that reliance.” Yocca v. Pittsburgh Steelers Sports,
Inc., [] 854 A.2d 425, 438 (Pa. 2004) (emphasis added). Strict
technical privity is not required to bring a cause of action under
the UTPCPL. Valley Forge Towers Smith Condominium v.
Ron-Ike Foam Insulators, Inc., [] 574 A.2d 641, 647 (Pa.
Super. 1990).
Zajick v. Cutler Grp., Inc., 169 A.3d 677, 680 (Pa. Super. 2017).14
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14 Specifically, section 201-3 of the UTPCPL creates a private cause of action
in the following circumstances:
(a) Any person who purchases or leases goods or services
primarily for personal, family or household purposes
and thereby suffers any ascertainable loss of money
or property, real or personal, as a result of the use or
employment by any person of a method, act or
practice declared unlawful by section 3 of this act,
may bring a private action to recover actual damages
or one hundred dollars ($ 100), whichever is greater. The
court may, in its discretion, award up to three times the
(Footnote Continued Next Page)
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After examining the parties’ briefs, the issues on appeal, and relevant
statutory and case law, we affirm the court’s judgment. In doing so, we rely
upon the thorough and well-written opinions authored by Judge Baldi. See
Pa.R.A.P. 1925(a) Opinion, 6/10/22, at 5-10; Trial Court Opinion, 7/1/21.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/2023
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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 P.S. § 201-9.2(a) (emphasis added). Under section 3 of the UTPCPL
“unlawful acts or practices” are defined as “unfair methods of competition and
unfair or deceptive acts of practices in the context of any trade or commerce
as defined by subclauses (i) through (xxi) of clause (4) of section 2 of this act
and regulations promulgated under section 3.1 of this act[.]” Id. at § 201-3.
The UTPCPL prohibits “engaging in any other fraudulent or deceptive conduct
which creates a likelihood of confusion or misunderstanding.” Id. at 201-
2(4)(xxi). See Gregg v. Ameriprise Fin., Inc., 245 A.3d 637 (Pa. 2021)
(UTPCPL’s 1997 amendment created “catch all” provision that expanded its
scope to cover not just “fraudulent” but also “deceptive” conduct; statute
requires neither intent to deceive nor negligence with regard to effect of
misrepresentation).
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