Chase, J. v. Creegan, D. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAN M. CHASE, PERSONAL IN THE SUPERIOR COURT OF
REPRESENTATIVE OF THE ESTATE OF PENNSYLVANIA
CHRIS S. CHASE, CHRIS S. CHASE
FAMILY ENTERPRISES, LLC, AND LARRY
D. FRAZEE
Appellants
v.
DAVID M. CREEGAN
Appellee No. 1681 WDA 2015
Appeal from the Judgment Entered October 16, 2015
In the Court of Common Pleas of Bedford County
Civil Division at No(s): 136 for 2012
JAN M. CHASE, PERSONAL IN THE SUPERIOR COURT OF
REPRESENTATIVE OF THE ESTATE OF PENNSYLVANIA
CHRIS S. CHASE, CHRIS S. CHASE
FAMILY ENTERPRISES, LLC, AND LARRY
D. FRAZEE
Appellees
v.
DAVID M. CREEGAN
Appellant No. 1757 WDA 2015
Appeal from the Judgment Entered October 16, 2015
In the Court of Common Pleas of Bedford County
Civil Division at No(s): 136 for the year 2012
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BEFORE: LAZARUS, J., STABILE, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED APRIL 04, 2017
Jan M. Chase, Personal Representative of the Estate of Chris S.
Chase,' Chris S. Chase Family Enterprises, LLC., and Larry D. Frazee
(collectively "Plaintiffs/Sellers") appeal and David M. Creegan
(Creegan/Buyer) cross -appeals from the judgment entered on the jury's
verdict in favor of Creegan in the amount of $126,000.00, after the trial
court denied Plaintiffs' and Creegan's post -trial motions. After careful
review, we affirm.
On January 29, 2008, the parties entered into a "contract for deed"2
whereby Plaintiffs agreed to sell Creegan a 448.75 -acre tract of land located
at 557 Bedford Valley Road, in Londonderry Township, Bedford County.
Although the title abstract attached to the parties' agreement of sale and oil
and gas leases on the tract indicated that the property consisted of 448.75
acres, it actually consisted of 246.25 acres. The parties agreed upon a sale
price of $225,000.00, and that all payments would be made by January 1,
2010. Installment payments of $25,000.00 were due by Creegan upon
execution of the agreement and by January 9, 2009; and a balloon payment
* Retired Senior Judge assigned to the Superior Court.
1 Plaintiff Chris Chase passed away during the pendency of the action.
2 Although the actual document is titled "Contract for Deed," we have chosen
to use the more universal term, "agreement of sale," throughout this
memorandum.
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was due by January 1, 2010, which included the remainder of the purchase
price and 6% interest. In addition, Creegan was to pay all taxes and
assessments levied against the property.
In the event that the agreement was terminated, Creegan was
required to return the property in "substantially the same condition" as it
existed on the sale date. In the event of default, Creegan was to forfeit any
and all payments made under the terms of the contract, including taxes and
assessments.
Creegan took immediate possession of the premises on the date of
sale and tendered a check to Sellers in the amount of $18,750.00. The
check was returned for insufficient funds. In early February 2008, Creegan
discovered the acreage discrepancy after reviewing a property survey that
had been prepared in October 2007 for Plaintiff Chris Chase by witness, Rex
Clark. Creegan later wired funds to Plaintiffs to make up for the returned
check and for the remainder of the down payment. On March 8, 2010,
Plaintiff Chris Chase sent Creegan a letter acknowledging that the parties
had met face-to-face to discuss Creegan's current default status on the
contract and, if Creegan paid $25,000.00 (principal and interest) by April 7,
2010, that the deadline for the final payment would be extended to October
7, 2010. The letter also indicated that the interest rate would retroactively
increase from 6% to 7%, effective January 1, 2010.
On February 25, 2011, Plaintiffs sent Creegan a letter reminding him
that his final payment was still past due and extending his pay-off date to
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September 10, 2011, under three conditions: (1) payment of $32,000.00 by
March 10, 2011; (2) acknowledgment that the amount of land sold to him
was actually 246.25 acres; and (3) return of a signed copy of the letter to
Plaintiffs. On May 13, 2011, Plaintiffs gave Creegan written notice that final
payment was due in the amount of $214,502.25 and demanded immediate
possession of the property if payment was not tendered. On May 12, 2011,
Kristin M. Banasick, Esquire, notified Creegan by letter that she had been
advised by Plaintiffs that he was still in default, and that according to the
parties' agreement, "if the default continues for an additional period of
fifteen (15) days, you are to surrender the premises and Mr. Chase may
repossess the property." Letter to Creegan, 5/12/11.
On February 6, 2012, Plaintiffs filed an action in ejectment against
Creegan, seeking the court to "restor[e] plaintiffs to the possession of the . .
. property" and "for costs, counsel fees and such other and further relief this
Court deems just and appropriate." Plaintiffs' Complaint, 2/6/12, at 6. In
response, Creegan filed an answer, new matter and three counterclaims:
Counterclaim I (Fraudulent Misrepresentation as Inducement to Enter
Contract - damages);3 Counterclaim II (Fraudulent Misrepresentation as
3 Creegan filed two fraudulent misrepresentation counterclaims. The first
claim sought reimbursement of the funds he paid toward the agreement of
sale and for damages for improvements he made to the property. The
second claim sought reformation of the contract and specific performance
with a reduced price reflecting the correct amount of acres of the tract.
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Inducement to Enter Contract - specific performance); and Counterclaim III
(Unjust Enrichment). Creegan claimed that Plaintiffs "intentionally
misrepresented the acreage of the property sold subject to the contract as
containing 448 acres." Creegan Answer, New Matter, and Counterclaim,
4/27/12, at 1119. Creegan also averred that after he was induced to buy the
property (which he believed to consist of 448 acres) and discovered the
acreage discrepancy, Plaintiffs told him to "continue with the payments
under the contract with the assurance that the inaccuracy would be
addressed." Id. at 1123. Finally, Creegan asserted that based upon
Plaintiffs' assurances, he "invested substantial sums of money in improving
the property," including a cabin, well, fencing and gating, and road
improvements. Id. at 1126.
In their answer to Creegan's counterclaims, Plaintiffs averred:
It is admitted the Counterclaim defendants had the property
surveyed in 2007 by Rex E. Clark, R.S. It is denied the
Counterclaim defendants misrepresented the acreage to the
Counterclaim plaintiff. To the contrary, prior to closing on
January 29, 2008, the discrepancy in the acreage was
openly discussed and a copy of the survey was provided
to Counterclaim plaintiff indicating the actual acreage
being sold.
Plaintiffs' Answer to Counterclaim, 5/21/12, at '11 20 (emphasis added). In
response to Creegan's first set of interrogatories and request for production
of documents, Plaintiffs gave the following additional information to support
paragraph 20 of their answer:
The plaintiffs [including Larry Frazee] along with the defendant
gathered at a table in the basement of [4976 White Rock Road,
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Friendsville, Maryland]. A copy of the survey prepared by Rex
Clark . . was provided and reviewed by the parties along with
.
the Purchase Agreement[.] Both parties reviewed and agreed to
the documents provided by and to them prior to closing.
Plaintiffs' Answers to Interrogatories, 1/31/13, at '11 24(d).
On June 11, 2015, Plaintiffs filed a motion for judgment on the
pleadings, seeking immediate possession of the premises. On August 17,
2015, immediately prior to the start of trial, the court entered an order:
dismissing, with prejudice, Creegan's Counterclaim II (Fraud - specific
performance) due to the fact that he was "unable to provide any competent
evidence regarding the value of the real property to seek reformation and
specific performance of the contract;" granting judgment on the pleadings
in favor of Plaintiffs, ejecting Creegan from the premise and giving Plaintiffs
possession of the property; and denying the parties' request for counsel fees
and costs.4 See Order, 8/17/15, at III 1-3; see also N.T. Jury Trial,
8/17/15, at 38, 54-55. After a two-day jury trial held on August 17-18,
2015, the court entered a verdict in favor of Creegan for $126,000.00 in
damages. The verdict slip denoted that the jury awarded Creegan
4 The court determined that since Plaintiffs were out of possession and
Creegan conceded he had not performed under the contract, Plaintiffs were
entitled to immediate possession in their ejectment action.
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$68,000.005 for fraud in the inducement (damages) and $58,000 for unjust
enrichment.
Post -trial motions were filed by both parties and denied by the court
on October 6, 2015. On October 22, 2015, Plaintiffs filed a notice of appeal;
on October 30, 2015, Creegan filed a notice of cross-appeal.6 The court
entered an order requiring Plaintiffs and Creegan to file Pa.R.A.P. 1925(b)
concise statements of matters complained of on appeal, with which the
parties complied. This timely appeal and cross -appeal follow.
On appeal, Plaintiffs present the following issues for our consideration:
(1) Did the trial court err in refusing to grant judgment in
favor of the plaintiffs on the counterclaim for unjust
enrichment where it was conclusively established that the
relationship of the parties was founded upon an express
written contract?
(2) Did the trial court err in refusing to grant judgment in
favor of the plaintiffs on the counterclaim for fraud in the
inducement of a real estate contract where the alleged
misrepresentation was the quantity of acreage, a defect
that was readily determinable by a reasonable inspection?
(3) Did the trial court err in precluding the testimony of two
liability witnesses where both were identified as persons
with first-hand knowledge of the contract and/or the
property in response to an interrogatory and as liability
witnesses in both of Plaintiffs' Pre -Trial Statements on the
5
This figure represents the payments that Creegan made to Plaintiffs under
the agreement of sale. The payments were in the form of six separate
checks, dated 1/29/08, 1/29/08, 11/12/08, 12/1/08, 2/09 and 4/10.
6See Pa.R.A.P. 903(b) (cross appeals may be filed within 14 days of date on
which first timely notice of appeal served).
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basis of an incomplete answer to another interrogatory,
where [Creegan] made no effort to determine what
information the witnesses possessed through formal or
informal discovery?
(4) Did the trial court err by refusing to reduce the verdict or
to give binding instructions to the effect that [Creegan]
could not recover damages for fraud in the inducement
that were incurred after he had actual knowledge of the
correct quantity of acreage where the fraud claim was
based on a misrepresentation of the quantity of acreage?
(5) Did the trial court err by refusing to give the jury an
instruction regarding a rule of construction for interpreting
a legal description when the metes -and -bounds description
conflicts with the quantity of land, where the alleged
misrepresentation was contained in exactly that type of
legal description?
(6) Did the trial court err by precluding the Plaintiffs' claim for
damages or mesne profits on [the] basis of a label in the
caption where the facts alleged in the complaint gave rise
to a claim for either?
On cross -appeal, Creegan presents the following issues for our review:
(1) Whether, under Pennsylvania law, the Honorable Trial
Court erred by entering a compulsory nonsuit on Count II
of [Creegan's] Counterclaim and then declining to remove
said compulsory nonsuit where: 1) similar to Count I of
[Creegan's] Counterclaim upon which the jury found in
[Creegan's] favor, Count II of the Counterclaim alleged
fraud in the inducement but, in the alternative, requested
modification and specific performance of the underlying
Contract for Deed to reflect the true acreage of the
Property in question - 246.25 acres - rather than the
448[.75] acres fraudulently misrepresented by the
[Plaintiffs] to [Creegan]; 2) such a request for a
conditional verdict is authorized under Pennsylvania law;
3) [Creegan] was prepared to testify to the appropriate
reformed purchase price at the time of trial; but 4) on the
morning of trial, and only moments prior to counsels'
slated delivery of opening statements, the Court very
unexpectedly entered a compulsory nonsuit on Count II of
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[Creegan's] Counterclaim, sua sponte, without any
testimony being taken in Court.
(2) Whether, under Pennsylvania law, the Honorable Trial
Court erred by granting [Plaintiffs'] motion for judgment
on the pleadings relative to [Creegan's] sole action in
ejectment on the basis of the compulsory nonsuit that was
improperly entered on Count II of [Creegan's]
Counterclaim where: 1) [Plaintiffs'] motion for judgment
on the pleadings was filed nearly three years to the day
after the relevant pleadings were closed; 2) five days prior
to trial, the Court verbally denied [Plaintiffs'] motion but
then reversed course only mere moments before the
commencement of trial; 3) neither the pleadings nor the
evidence presented at trial established the necessary
elements to sustain an ejectment action; and 4) the Trial
Court declined to vacate the judgment so entered.
I. Plaintiffs' Claims on Appeal
A. Unjust Enrichment
Plaintiffs first assert that the trial court erred in failing to grant
judgment in their favor on Creegan's unjust enrichment claim. Specifically,
Plaintiffs claim that because they "conclusively established that the
relationship of the parties was founded upon an express written contract,"
Plaintiffs' Brief, at 4, there is no need to imply a contract under the equitable
doctrine of unjust enrichment.
Unjust enrichment is essentially an equitable doctrine. Where
unjust enrichment is found, the law implies a contract, which
requires the defendant to pay to the plaintiff the value of the
benefit conferred. The elements necessary to prove unjust
enrichment are:
(1) benefits conferred on defendant by plaintiff; (2)
appreciation of such benefits by defendant; and (3)
acceptance and retention of such benefits under such
circumstances that it would be inequitable for defendant to
retain the benefit without payment of value. The
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application of the doctrine depends on the particular
factual circumstances of the case at issue. In
determining if the doctrine applies, our focus is not
on the intention of the parties, but rather on
whether the defendant has been unjustly enriched.
Mitchell v. Moore, 29 A.2d 1200, 1203-04 (Pa. Super. 1999) (emphasis
added) (citations and internal quotation marks omitted). Moreover, while
unjust enrichment is an equitable remedy, our Court has permitted parties
to plead breach of contract and unjust enrichment alternatively, although
recovery for both claims is not allowed. Lugo v. Farmers Pride, Inc., 967
A.2d 963 (Pa. Super. 2009). Finally, a victim of fraud in the inducement has
two options: (1) rescind the contract, or (2) affirm the contract and sue for
damages. Eigen v. Textron Lycoming Reciprocating Engine Div., 874
A.2d 1179, 1184 (Pa. Super. 2005) (citation omitted).
Instantly, the jury determined that Creegan was entitled to rescind the
contract due to Plaintiffs' fraud in the inducement. Rescission, an equitable
remedy, involves a disaffirmance of the contract and a restoration of the
status quo; whereas, the recovery of damages, which is a legal remedy,
involves an affirmance of the contract. Wedgewood Diner, Inc. v. Good,
534 A.2d 537, 539-39 (Pa. Super. 1987) (citing 40 A.L.R. 4th 627, 630-31
(1985)). Accordingly, the parties were properly restored to their positions
prior to entering into the agreement; Plaintiffs were given possession of the
property and Creegan was reimbursed all his monies paid under the
agreement.
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Creegan, however, also testified at trial that Plaintiffs received the
benefit of deer hunts on the property worth $11,500.00 in addition to
substantial improvements he made to the property, including building an
$84,500.00 log cabin, expending $6,038.10 to drill a potable water well,
incurring $6,620.00 in expenses to erect over 4,000 linear feet of fencing
and gating, and making $19,494.39 in road improvements. The jury
concluded that where Plaintiffs benefitted from these improvements, in order
to be equitable, Creegan was entitled to restitution for these improvements.
See Restatement (Second) of Contracts, § 376 (restitution when contract is
voidable). Thus, based on the evidence substantiating the improvements,
which consisted of invoices, photographs, and check records, we cannot say
that the jury's decision to award damages was unsupported in the record or
demonstrably capricious. Restatement (Second) of Contracts, § 371(b)
(measure of restitution interest to extent which other party's property has
bene increased in value); Robbins v. Kristofic, 643 A.2d 1079 (Pa. Super.
1994).
B. Fraud
Plaintiffs also claim that the court should have entered judgment in
their favor on Creegan's fraud counterclaim. Specifically, they assert that
because the acreage discrepancy was "a defect that was readily
determinable by a reasonable inspection," Plaintiffs' Brief, at 4, Creegan
should not have succeeded on this counterclaim.
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In order to void a contract due to an intentional or fraudulent
misrepresentation, the party alleging fraud must prove, by clear and
convincing evidence:
(1) a representation; (2) which is material to the
transaction at hand; (3) made falsely, with knowledge of
its falsity or recklessness as to whether it is true or false;
(4) with the intent of misleading another into relying on it;
(5) justifiable reliance on the misrepresentation; and (6)
the resulting injury was proximately caused by the
reliance.
Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999), citing Gibbs v. Ernst, 647
A.2d 882, 889 (Pa. 1994). It is not enough simply to assert that a
statement was "fraudulent" and that reliance upon it induced some action.
Gruenwald v. Advanced Computer Applications, Inc., 730 A.2d 1004,
1014 (Pa. Super. 1999). It is also not sufficient to aver that a knowingly
false statement was made for the purpose of misleading another into
reliance upon it. Sewak v. Lockhart, 699 A.2d 755, 759 (Pa. Super.
1997). Before fraud will be found, a plaintiff must demonstrate that he
justifiably relied on the false statement. Id. To be justifiable, reliance upon
the representation of another must be reasonable. Drelles v.
Manufacturers Life Insurance Co., 881 A.2d 822 (Pa. Super. 2005).
In a case of fraud in the inducement, "the party proffering evidence of
additional prior representations does not contend that the representations
were omitted from the written agreement, but, rather, claims that the
representations were fraudulently made and that 'but for them' he would
never have entered into the agreement." Blumenstock v. Gibson, 811
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A.2d 1029, 1036 (Pa. Super. 2002); see Restatement (Second) of
Contracts, § 162(1) ("A misrepresentation is fraudulent if the maker intends
his assertion to induce a party to manifest his assent and the maker: (a)
knows or believes that the assertion is not in accord with the facts, or (b)
does not have the confidence that he states or implies in the truth of the
assertion, or (c) knows that he does not have the basis that he states or
implies for the assertion.").
Here, Creegan was provided several documents indicating that the
tract he was purchasing consisted of 488.75 acres, when in actuality it was
44% less than that. Specifically, the title abstract attached to the parties'
agreement of sale and several oil and gas leases for the parcel stated the
incorrect acreage. These documents were provided to Creegan when he
agreed to buy the tract. As the trial court points out, it is unreasonable to
assume that a buyer, under the circumstances, would be able to discern with
the naked eye whether a given tract of land is four hundred or two hundred
acres. Moreover, the jury believed Creegan's testimony that he did not
discern the acreage discrepancy until after he signed the agreement.
Therefore, we conclude that Creegan justifiably relied on Plaintiffs' material
misrepresentation in purchasing the land. Cf. Blumenstock v. Gibson,
811 A.2d 1029 (Pa. Super. 2002) (party could not justifiably rely upon
seller's prior oral representations, yet sign real estate contract denying those
representations regarding sump pits and pumps being non -operational and
unnecessary; fact that seller did not affirmatively disclose pumps'
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functionality irrelevant when buyers could have observed physical condition
of property and made own reasonable inferences about pumps).
C. Liability Witnesses
Plaintiffs next claim that the trial court erred in precluding the
testimony of two lay witnesses, Plaintiff Larry Frazee and his son, Brian
Frazee, whom they allege had first-hand knowledge of a 2004 conversation
with Creegan regarding the true acreage of the property. Plaintiffs claim
that the trial court incorrectly determined that their testimony should not be
permitted at trial because Plaintiffs violated discovery rules by not
specifically listing their exact testimony in an answer to an interrogatory.
Prior to trial, Creegan filed a motion in limine to preclude the
testimony of Brian Freeze claiming that while Brian had been identified in
Plaintiffs' pre-trial statement filed in July 2015, he was never identified as an
expert and any testimony that Brian could provide would be "wholly
irrelevant." Motion in Limine, at III 4-8. Because Brian was neither a party
to the parties' real estate transaction or present during the singing of the
agreement of sale on January 29, 2008, Creegan claimed that his testimony
about the parties' agreement would be inadmissible hearsay. Id. at '11 13.
At trial, the court precluded Brian from testifying that he had a conversation
with his Father, Larry, and in the presence of Creegan about the acreage
discrepancy. N.T Jury Trial, 8/17/15, at 5-6.
In Gill v. McGraw Electical Co., 399 A.2d 1095 (Pa. Super 1979) (en
banc), our Court set forth the factors a court must consider in determining
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whether or not a witness should be precluded for failure to comply with
discovery rules:
(1) the prejudice or surprise in fact of the party against whom
the excluded witnesses would have testified[;] (2) the ability of
that party to cure the prejudice[;] (3) the extent to which waiver
of the rule against calling unlisted witnesses would disrupt the
orderly and efficient trial of the case or of cases in the court[;
and] (4) bad faith or willfulness in failing to comply with the
court's order.
Id. at 1102.
Instantly, both Larry and Brian Frazee were listed as witnesses in
Plaintiffs' pre-trial memorandum. However, Brian is not mentioned in the
Plaintiffs' Answers to Interrogatories as having been present at the "closing
on January 29, 2008, [when] the discrepancy in the acreage was openly
discussed and a copy of the survey was provided to Counterclaim plaintiff
indicating the actual acreage being sold." Plaintiffs' Answer to Counterclaim,
5/21/12, at ¶ 20. Rather, Plaintiffs' answer to that specific interrogatory
states, in relevant part:
The plaintiffs [including Larry Frazee] along with [Creegan]
gathered at a table in the basement of [4976 White Rock Road,
Friendsville[,] Maryland]. A copy of the survey prepared by Rex
Clark . .was provided and reviewed by the parties along with
.
the Purchase Agreement[.] Both parties reviewed and agreed to
the documents provided by and to them prior to closing.
Plaintiffs' Answers to Interrogatories, 1/31/13, at ¶ 24(d).
Therefore, while Creegan had notice that these witnesses may be
called at trial to provide testimony with regard to liability and damages, he
had no idea until two weeks before trial that the Plaintiffs intended to offer
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Brian Freeze's testimony to support their position on the central issue in the
case - whether Creegan knew the proper acreage of the tract prior to
signing the parties' agreement. Compare Smith v. Grab, 705 A.2d 894(Pa. Super. 1997) (trial court abused its discretion in precluding lay witness
testimony, which did not go to core issue of plaintiff's treatment, where
witnesses were listed in Plaintiff's response to interrogatories and
supplemental pre-trial statement) with Gill, supra (where appellees did not
provide appellant with any notice of expected testimony by expert
witnesses, as required by court's pre-trial order, court committed error in
permitting witnesses to testify at trial) and Nissley v. Pennsylvania R.R.
Co., 259 A.2d 451 (Pa. 1969) (where plaintiff refused to answer
interrogatory relating to expert witness it was error to permit witness to
testify).
Moreover, to the extent that Larry Freeze was not permitted to testify
regarding the alleged conversation he had with Brian and Creegan, the court
properly limited his testimony to the facts asserted in Plaintiffs' answer to
interrogatories. See Feingold v. Southeastern PennsylvaniaTransp.
Auth., 488 A.2d 284 (Pa. Super. 1985) (in absence of bad faith or willful
disobedience of discovery rules, most significant considerations are
importance of witness' testimony and prejudice to party against whom
witness will testify).
D. Damages for Fraud Incurred After Creegan had Notice of
Acreage Discrepancy
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Plaintiffs next claim on appeal that it was error for the jury to award
Creegan any damages for fraud in the inducement for the period of time
after he realized the actual acreage of the property. Instantly, Creegan
testified that after he discovered the acreage discrepancy, Plaintiffs told him
to continue to pay under the contract with their assurance that the
inaccuracy would be addressed. Therefore, it was reasonable for the jury to
believe Creegan's testimony and award him damages for Plaintiffs' false
assurances even after he discovered the discrepancy. Boggavarapu v.
Ponist, 542 A.2d 516, 519 (Pa. 1988) (jury exercises prerogative to believe
all, some, or none of evidence presented); Foflygen v. Allegheny Gen.
Hosp., 723 A.2d 705, 712 (Pa. Super. 1999) (questions of credibility and
conflicts in evidence are for fact -finder to resolve). Accordingly, we find no
merit to this claim on appeal.
E. Jury Instruction for Misrepresentation of Acreage
Plaintiffs claim that the trial court erred in refusing to instruct the jury
on a legal description of the land in metes and bounds terms, rather than
solely acres. Plaintiffs claim that there was factual support in the record to
warrant a metes and bounds charge, specifically the title abstract, and that
such a charge would have "given the jury legal guidance on how to construe
th[ose] documents."
In examining jury instructions, the scope of review is limited to
determining whether the trial court committed a clear abuse of
discretion or error of law controlling the outcome of the case.
Error in a charge is sufficient ground for a new trial if the charge
as a whole is inadequate or not clear or has a tendency to
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mislead or confuse rather than clarify a material issue. Error will
be found where the jury was probably [misled] by what the trial
judge charged or where there was an omission in the charge. A
charge will be found adequate unless the issues are not made
clear to the jury or the jury was palpably misled by what the trial
judge said or unless there is an omission in the charge which
amounts to a fundamental error. In reviewing a trial court's
charge to the jury, the reviewing court must look to the charge
in its entirety. Because this is a question of law, the court's
review is plenary.
Passarello v. Grumbine, 87 A.3d 285, 287 (Pa. 2014) (citations, quotation
marks, and ellipses omitted).
Here, the majority of the evidence describing the size of the tract of
land involved in the parties' dispute used acres as the relevant
measurement. While the title abstract attached to the Plaintiffs' complaint
did refer to a metes and bounds description of the property, the court
concluded that to describe the land in a way other than the more commonly
used term of acreage would run the risk of confusing the jury. We agree
and find that the court's instruction, as a whole, was adequate and the
omission of a metes and bounds charge was not fundamental error.
Passarello, supra; Pringle v. Rapaport, 980 A.2d 159, 173 (Pa. Super.
2009) (purpose of charging jury is to clarify issues which jurors must
determine).
F. Preclusion of Recovery for Mesne Profits
In their final claim on appeal, Plaintiffs argue that the court improperly
precluded them from seeking mesne profits or damages where "those items
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were placed at issue based on the material facts alleged." Plaintiff's Brief on
Appeal, at 12.
Mesne profits are defined as "[i]ntermediate profits; profits accruing
between two points of time. Profits accruing from land during an
intermediate period, such as a period of tortious holding by the defendant in
an action in ejectment." 25 Am J2d Eject § 148.
If a plaintiff in ejectment does not declare or give notice of a
claim for mesne profits, he can, after judgment in ejectment,
sue in trespass vi et armis for such damages. The notice or
declaration for mesne profits in the ejectment action is but a
permissive right to consolidate a claim for trespass vi et armis
with the action of ejectment. The Act of 1876, P. L. 95, Pa. Stat.
Ann. tit. 12, § 1557, making it lawful for a plaintiff to give notice
or declare for mesne profits in an action of ejectment, is
permissive and not mandatory, and the Act itself was but
declaratory of decisional law.
Crecium v. McCann, 67 A.2d 622 (Pa. Super. 1949).
In their ejectment action, Plaintiffs included an ad damnum clause
seeking "possession of the above -captioned real property, for costs, counsel
fees and such other further relief as this Court deems just and appropriate."
Plaintiffs' Complaint, 2/3/12, at 27. Plaintiffs, however, did not specifically
seek mesne profits in their complaint. See Reilly v. Crown Petroleum
Co., 63 A. 253, 254 (Pa. 1906) (after recovery in ejectment, trespass is
proper remedy to recover mesne profits of land taken by adverse claimant in
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possession of premises). Therefore, Plaintiffs could have timely' amended
their complaint to include a claim for such profits or filed a separate action
for mesne profits, albeit within the appropriate statute of limitations. Reilly,
supra; Crecium, supra. Accordingly, the court did not err in preluding
Plaintiffs from recovering mesne profits in their ejectment action.
II. Creegan's Claims on Cross -Appeal
A. Compulsory Non -Suit on Counterclaim II
Creegan contends that the trial court improperly entered nonsuit on
his counterclaim (Count II - Fraud (contract reformation)) at the
commencement of trial. Specifically, he asserts that the court prematurely
dismissed his counterclaim without first hearing evidence on whether
Creegan was entitled to modification of the contract based on a price
reflecting the true acreage of the tract.
Here, Creegan failed to produce competent evidence regarding the
true value of the property, based on the reduced acreage, to support
reformation of the parties' agreement. Under such circumstances, the court
properly granted nonsuit on this claim. See Vicari v. Spiegel, 936 A.2d
7 The court denied Plaintiffs' last-minute request to amend the ad damnum
clause to include damages or mesne profits. Cheskiewicz v. Aventis
Pasteur, Inc., 843 A.2d 1258, 1266 (Pa. Super. 2004) (leave to amend
complaint is within sound discretion of trial court and should be liberally
granted; however, where plaintiffs, offhand, sought to add claim outside of
legal basis of original complaint, denial of amendment was proper).
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503, 509 (Pa. Super. 2007) (standard of review for entry of a nonsuit is
well -established, "appellate court reverses only if, after giving appellant the
benefit of all reasonable inferences of fact, it finds that the factfinder could
not reasonably conclude that the essential elements of the cause of action
were established.").8
B. Grant of Judgment on Pleadings in favor of Plaintiffs
Finally, Creegan claims that the trial court improperly granted
judgment on the pleadings in favor of Plaintiffs prior to the commencement
of trial. Specifically, he contends that the Plaintiffs were not entitled to
immediate possession of the property on their ejectment action and that
granting the judgment on the eve of trial, when the pleadings had been
closed for almost three years, was error.
Pursuant to Pa.R.C.P. 1034, "[a]fter the relevant pleadings are closed,
but within such time as not to unreasonably delay the trial, any party may
move for judgment on the pleadings." Pa.R.C.P. 1034(a) (emphasis added).
An appellate court will reverse a trial court's grant of judgment on the
8
In any event, the remedies of reformation and rescission both could not
have gone before the factfinder; thus, the court properly precluded the
remedy of reformation from going before the jury. See Wedgewood
Diner, Inc., supra at 538 (party cannot, in the assertion or prosecution of
his rights, maintain inconsistent positions; to allow party to allow both
rescission and reformation of contract for fraud would "allow a double
remedy for the same wrong."); but see 25 Am.Jur.2d Election of Remedies,
§ 16 ("where there is nothing more than the mere institution of a suit or
proceeding, which is abandoned or dismissed before judgment, there is
nothing on which to base an estoppel - no benefit and no detriment.").
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pleadings only where a clear error of law has been committed or where there
were facts disclosed by the pleadings that should have been resolved by the
jury. Gardner v. Erie Ins. Co., 691 A.2d 459 (Pa. Super. 1997), aff'd 722
A.2d 1041 (Pa. 1999). Here, the trial court did not err in considering
Plaintiffs' motion before trial where Creegan has failed to show how the June
2015 filing unreasonably delayed trial or how he was prejudiced by the
filing.9 Pa.R.C.P. 1034(a).
Moreover, having determined that the contract should be rescinded
based upon Plaintiffs' fraud, the court properly returned possession of the
property to Plaintiffs to restore the status quol° See Wedgewood Diner,
supra.
Judgment affirmed.
9
We note that the court set a deadline of July 1, 2015 for all filing of
dispositive pre-trial motions. Plaintiffs' motion was timely filed prior to the
deadline, on June 11, 2015.
10
Here, the court prematurely returned possession of the property to Sellers
prior to trial and before the jury determined that the contract was voidable
for fraud and should be rescinded. However, because the Sellers were
entitled to possession of the property upon rescission of the agreement and
the return of all monies paid by Buyer, any error was harmless.
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 4/4/2017
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