J-A23044-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANGEL N. FARMERIE IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JOHN B. KRAMER, ERA LECHNER &
ASSOCIATES, INC., DOROTHY
HARRISON, NORTH PITTSBURGH
REALTY, LP, T/D/B/A KELLER WILLIAMS
REALTY, FELIX J. KRYNICKY, & METRO
SETTLEMENT SERVICES, INC.
Appellees No. 2071 WDA 2014
Appeal from the Judgment Entered December 18, 2014
In the Court of Common Pleas of Westmoreland County
Civil Division at No(s): 3527-2013
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 27, 2015
Appellant, Angel N. Farmerie, appeals from the judgment entered in
the Westmoreland County Court of Common Pleas in favor of Appellees,
John B. Kramer, ERA Lechner & Associates, Inc., Dorothy Harrison, North
Pittsburgh Realty, LP, t/d/b/a/ Keller Williams Realty, Felix J. Krynicky, and
Metro Settlement Services, Inc. We affirm.
The relevant facts and procedural history of this case are as follows.
On April 17, 2011, Appellant entered into an agreement of sale (“Agreement
No. 1”) to purchase real property from Appellee Kramer for $269,000.00.
Appellant employed Appellee Keller Williams Realty as her realtor, and
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Appellee Krynicky was Appellant’s real estate agent for the sale. Appellee
Kramer employed Appellee ERA Lechner as his realtor, and Appellee Harrison
was Appellee Kramer’s real estate agent for the sale. Agreement No. 1
contained a mortgage contingency clause, in which Appellant had to obtain a
mortgage by May 19, 2011. Appellant was unable to obtain a mortgage by
May 19, 2011, and the parties subsequently executed a release from
Agreement No. 1 on June 20, 2011.
Appellant and Appellee Kramer agreed to reduce the purchase price to
$266,000.00 and entered into a second agreement of sale (“Agreement No.
2”) on June 20, 2011, which contained a modified mortgage contingency
clause requiring Appellant to obtain a mortgage by July 1, 2011. Agreement
No. 2 also provided that Appellee Kramer would accept a one-year
Installment Land Contract (“ILC”) in the event Appellant was unable to
obtain a mortgage by the July 1, 2011 deadline. Appellant was unable to
obtain a mortgage by the July 1, 2011 deadline. Appellee Metro then
prepared the ILC for Appellant and Appellee Kramer. On July 14, 2011,
Appellant and Appellee Kramer executed the ILC and closed on the ILC on
July 18, 2011. Appellant subsequently moved into the property with her
children.
The ILC required Appellant to make monthly “hand money” payments
to Appellee Kramer in the amount of $1,668.01, with a balloon payment due
at the end of the one-year contract. Appellant made the required monthly
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payments to Appellee Kramer from August 2011 until August 20131 as well
as various other payments on the purchase price of the house. Appellant
also claimed she expended $19,089.00 to repair the septic system on the
property after experiencing problems with it from August 2011 to September
2011. From July 2011 through February 2013, Appellant tried to obtain a
mortgage from both Gateway and Dollar Bank to cover the impending
balloon payment under the ILC, but both lenders denied Appellant’s
application for a mortgage. After Dollar Bank’s denial of her mortgage
application in February 2013, Appellant notified Appellee Kramer by letter
dated April 29, 2013, that she was invoking the mortgage contingency
clause of Agreement No. 2. Appellant told Appellee Kramer she would return
the property to him, and Appellant requested the return of all money paid
under the ILC and all expenses incurred to repair the property. Appellee
Kramer responded by letter dated May 31, 2013, which stated he would like
to resolve the matter; but he would not be returning any money to her.
Appellant vacated the property in July 2013.
On July 3, 2013, Appellant filed a complaint against Appellees.
Appellant directed Count I at Appellee Kramer, seeking the termination of
the ILC and the recovery of $65,024.43 in “hand money” paid to Appellee
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1
While the ILC was originally a one-year contract set to end in July 2012,
Appellant and Appellee Kramer agreed to extend the contract multiple times
in order for Appellant to obtain a mortgage; thus, she paid “hand money” to
Appellee Kramer under the ILC for more than one year.
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Kramer under the ILC. Appellant directed Count II at Appellee Kramer,
claiming the monthly payments under the ILC were excessive and sought
the return of $28,197.03 in payments made under the ILC as well as
$29,299.59 paid in interest under the ILC, $19,089.00 paid to repair the
septic system, and $6,208.44 in real estate taxes. Appellant directed Count
III at Appellee Metro, claiming Appellee Metro negligently prepared the ILC.
Appellant directed Count IV at Appellee ERA Lechner and Appellee Harrison,
seeking the return of commission paid in the amount of $1,828.75.
Appellant directed Count V at Appellee Keller Williams Realty and Appellee
Krynicky, seeking the return of commission paid in the amount of $1,828.75.
Appellant directed Count VI at all Appellees, claiming all Appellees violated
the Unfair Trade Practice and Consumer Protection Law (“UTPCPL”)2 by
encouraging her to enter into the ILC, even though Agreement No. 2 and the
ILC were deceiving.
After Appellees filed various preliminary objections and answers,
Appellant amended her complaint on September 24, 2013. Appellee ERA
Lechner and Appellee Harrison filed preliminary objections in the nature of a
demurrer to Appellant’s amended complaint on October 10, 2013. On
October 18, 2013, Appellee Keller Williams Realty and Appellee Krynicky
filed an answer to Appellant’s amended complaint. On October 23, 2013,
____________________________________________
2
73 P.S. § 201-2(4)(xxi).
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Appellee Metro filed preliminary objections in the nature of a demurrer to
Appellant’s amended complaint, and Appellee Kramer filed an answer and
counterclaim to Appellant’s amended complaint on November 14, 2013. On
April 2, 2014, the court held oral argument on Appellee Metro’s preliminary
objections in the nature of a demurrer as to Count III and Count VI of
Appellant’s amended complaint. On April 23, 2014, the court overruled
Appellee Metro’s preliminary objection as to Count III, accepting that Count
III constituted a negligence claim against Appellee Metro. As to Count VI,
the court sustained Appellee Metro’s preliminary objection and dismissed the
UTPCPL claim against Appellee Metro. Appellee Metro filed an answer to
Appellant’s amended complaint on May 9, 2014.
On July 25, 2014, Appellee Keller Williams Realty and Appellee
Krynicky filed a motion for judgment on the pleadings. Appellee Kramer
then filed a motion for judgment on the pleadings on August 25, 2014. On
October 22, 2014, the court held a hearing on the pending motions for
judgment on the pleadings and Appellee ERA Lechner’s and Appellee
Harrison’s preliminary objections in the nature of a demurrer. By order
dated November 21, 2014, the court entered judgment on the pleadings in
favor of all Appellees and dismissed Appellant’s complaint with prejudice.
On December 18, 2014, Appellee Metro filed a praecipe for the court to
enter the November 21, 2014 order as a final judgment in favor of
Appellees, which the court did that day. Appellant filed a motion for
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reconsideration on December 19, 2014, asking the court to vacate its
November 21, 2014 order and allow her to amend her complaint to raise
claims of latent and patent ambiguities in Agreement No. 2 and the ILC. The
court denied the motion the same day, and Appellant immediately filed a
timely notice of appeal to this Court.3 The court did not order Appellant to
file a statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), and Appellant did not file one.
Appellant raises the following issues for our review:
DID THE [TRIAL] COURT [ERR] IN DISMISSING
APPELLANT’S CAUSE OF ACTION UNDER THE UTPCPL BY
EITHER FAILING TO UNDERSTAND OR IGNORING
APPELLANT’S PLEADINGS WHICH ALLEGED FACTS
SHOWING DECEPTIVE ACTS AND JUSTIFIABLE RELIANCE
WHICH CAUSED AN ASCERTAINABLE LOSS?
DID THE [TRIAL] COURT [ERR] IN SUSTAINING
[APPELLEE] METRO’S PRELIMINARY OBJECTIONS
DISMISSING APPELLANT’S UTPCPL CLAIM AGAINST
[APPELLEE] METRO?
____________________________________________
3
This Court hears appeals only from final orders. Pa.R.A.P. 341(a). Rule
341 defines a final order as one that “disposes of all claims and of all
parties.” Pa.R.A.P. 341(b)(1). “When more than one claim for relief is
presented in an action…the trial court…may enter a final order as to one or
more but fewer than all of the claims…only upon an express determination
that an immediate appeal would facilitate the resolution of the entire case.”
Pa.R.A.P. 341(c). “Such an order becomes appealable when entered.” Id.
Instantly, the trial court did not dispose of Appellee Kramer’s counterclaim
against Appellant in its November 21, 2014 order. Nevertheless, on January
16, 2015, Appellant filed a motion pursuant to Pa.R.A.P. 341(c), asking the
court to determine that an immediate appeal would facilitate the resolution
of the entire case, which the court granted. Thus, the November 21, 2014
order is an immediately reviewable order. Id.
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DID THE [TRIAL] COURT [ERR] IN DISMISSING
[APPELLEE] METRO WHEN THERE WAS NO MOTION FOR
JUDGMENT ON THE PLEADINGS OR PRELIMINARY
OBJECTIONS PENDING, THE AMENDED COMPLAINT
CONTAINED SPECIFIC ALLEGATIONS OF NEGLIGENCE AND
THE [TRIAL] COURT HAD PREVIOUSLY OVERRULED
[APPELLEE] METRO’S PRELIMINARY OBJECTIONS TO
COUNT III AND ACCEPTED THAT COUNT III WAS A
NEGLIGENCE CLAIM AGAINST [APPELLEE] METRO?
DID THE [TRIAL] COURT [ERR] IN DENYING APPELLANT’S
MOTION FOR RECONSIDERATION TO AMEND HER
COMPLAINT TO PLEAD THAT THERE IS A PATENT
AMBIGUITY IN [AGREEMENT NO. 2] AND THE [ILC]?
DID THE [TRIAL] COURT [ERR] IN DENYING APPELLANT’S
MOTION FOR RECONSIDERATION TO AMEND HER
COMPLAINT TO PLEAD THAT THERE ARE LATENT
AMBIGUITIES IN [AGREEMENT NO. 2] AND THE [ILC]?
DID THE [TRIAL] COURT [ERR] IN FINDING THAT
[APPELLEE KELLER WILLIAMS REALTY] AND [APPELLEE
KRYNICKY] WERE TWO OF THE THREE “MAIN
DEFENDANTS” WHEN IN FACT THEY WERE THE
“ANCILLARY DEFENDANTS”?
(Appellant’s Brief at 4).4
Our standard of review when considering the grant of a motion for
judgment on the pleadings is as follows:
Entry of judgment on the pleadings is permitted under
Pennsylvania Rule of Civil Procedure 1034, which provides
that after the pleadings are closed, but within such time as
not to unreasonably delay trial, any party may move for
judgment on the pleadings. A motion for judgment on the
pleadings is similar to a demurrer. It may be entered
when there are no disputed issues of fact and the moving
party is entitled to judgment as a matter of law.
____________________________________________
4
We have reordered Appellant’s issues.
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Appellate review of an order granting a motion for
judgment on the pleadings is plenary. The appellate court
will apply the same standard employed by the trial court.
A trial court must confine its consideration to the pleadings
and relevant documents. The court must accept as true all
well pleaded statements of fact, admissions, and any
documents properly attached to the pleadings presented
by the party against whom the motion is filed, considering
only those facts which were specifically admitted.
We will affirm the grant of a motion only when the moving
party’s right to succeed is certain and the case is so free
from doubt that the trial would clearly be a fruitless
exercise.
Southwestern Energy Production Co. v. Forest Resources, LLC, 83
A.3d 177, 185 (Pa.Super. 2013), appeal denied, 626 Pa. 691, 96 A.3d 1029
(2014) (internal citations and quotation marks omitted).
To prevail in a negligence action, “[a] plaintiff must establish the
defendant owed a duty of care to the plaintiff, that duty was breached, the
breach resulted in the plaintiff’s injury, and the plaintiff suffered an actual
loss or damages.” Merlini ex rel. Merlini v. Gallitzin Water Authority,
602 Pa. 346, 354, 980 A.2d 502, 506 (2009). Significantly:
It is beyond question that the mere existence of
negligence and the occurrence of injury are insufficient to
impose liability upon anyone as there remains to be proved
the link of causation. Furthermore, [the Pennsylvania
Supreme Court] has stated that…even when it is
established that the defendant breached some duty of care
owed to the plaintiff, it is incumbent on a plaintiff to
establish a causal connection between defendant’s
conduct, and it must be shown to have been the…cause of
plaintiff’s injury.
Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa.Super.
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2005), appeal denied, 587 Pa. 731, 901 A.2d 499 (2006) (internal citations
and quotation marks omitted). “In order to establish causation, the plaintiff
must prove that the breach was both the proximate and actual cause of the
injury.” Id. at 1287.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Anthony G.
Marsili, we conclude Appellant’s first, second, and third issues on appeal
merit no relief. The trial court opinion comprehensively discusses and
properly disposes of the questions presented. (See Opinion in Support of
Order Granting Judgment on the Pleadings, filed November 21, 2014, at 3-8)
(finding: (issue 1 & issue 2) Appellant established her confusion, but she
failed to plead justifiable reliance or causation to support UTPCPL claim
against any Appellee; court recognized confusion is small part of UTPCPL
claim but noted that Appellant did not identify particular deceptive acts each
Appellee engaged in which caused Appellant’s confusion; instead, Appellant
made only general allegations of deceptive conduct; Appellant argued
deceptive conduct need only cause “likelihood of confusion,” but Appellant
still failed to establish any instances of deceptive conduct by Appellees;
Appellant points only to differing clauses in Agreement No. 2 and ILC,
drafted at request of Appellees, to show Appellees engaged in deceptive
conduct; Appellant‘s assertion that her confusion was product of Appellees’
role in drafting Agreement No. 2 and ILC is insufficient to establish deceptive
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conduct; Appellant also admitted both Agreement No. 2 and ILC were
entered into for her own benefit, and Appellant failed to set forth how proper
understanding of Agreement No. 2’s and ILC’s actual terms would have
changed her conduct; based on review of pleadings, court concluded each
Appellee had shown Appellant failed to plead any facts to establish deceptive
conduct; thus, judgment on pleadings was appropriate, and trial court did
not err in dismissing Appellant’s UTPCPL claim as to all Appellees; (issue 3)
to extent Appellant pled negligence claim against Appellee Metro, Appellant
failed to plead required elements to establish that cause of action, especially
causation; because each Appellee, including Appellee Metro, showed that
Appellant failed to plead facts establishing deceptive conduct or basic
elements of negligence, trial exclusively on Count III of Appellant’s amended
complaint would be fruitless exercise; thus, judgment on pleadings was also
appropriate as to Appellant’s negligence claim against Appellee Metro). With
respect to Appellant’s first, second, and third issues, we affirm on the basis
of the trial court’s opinion.
Moreover, regarding Appellant’s fourth and fifth issues on appeal, we
observe: “[i]ssues not raised before the trial court are not preserved for
appeal and may not be presented for the first time on appeal.” Rabatin v.
Allied Glove Corp., 24 A.3d 388, 391 (Pa.Super. 2011); Pa.R.A.P. 302(a).
Additionally, “[d]enial of [a motion for] reconsideration is not subject to
appellate review.” Erie Ins. Exchange v. Larrimore, 987 A.2d 732, 743
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(Pa.Super. 2009). Further, issues raised for the first time in a motion for
reconsideration are beyond the jurisdiction of this Court and may not be
considered by this Court on appeal. See Rabatin, supra at 391. See also
Prince George Center, Inc. v. United States Gypsum Co., 704 A.2d
141, 145 (Pa.Super. 1997), appeal denied, 557 Pa. 640, 732 A.2d 1210
(1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 37 (1999)
(indicating this Court does not have jurisdiction over either trial court’s
denial of motion for reconsideration or issues initially raised in motion for
reconsideration).
Regarding Appellant’s sixth issue on appeal, Rule 2119(a) of the
Pennsylvania Rules of Appellate Procedure provides:
Rule 2119. Argument
(a) General rule. The argument shall be divided into as
many parts as there are questions to be argued; and shall
have at the head of each part—in distinctive type or in
type distinctively displayed—the particular point treated
therein, followed by such discussion and citation of
authorities as are deemed pertinent.
Pa.R.A.P. 2119(a). Additionally, Rule 2101 states:
Rule 2101. Conformance with Requirements
Briefs and reproduced records shall conform in all material
respects with the requirements of these rules as nearly as
the circumstances of the particular case will admit,
otherwise they may be suppressed, and, if the defects are
in the brief or reproduced record of the appellant and are
substantial, the appeal or other matter may be quashed or
dismissed.
Pa.R.A.P. 2101. Importantly:
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The argument portion of an appellate brief must include a
pertinent discussion of the particular point raised along
with discussion and citation of pertinent authorities. This
court will not consider the merits of an argument which
fails to cite relevant case or statutory authority. Failure to
cite relevant legal authority constitutes waiver of the claim
on appeal.
In re Estate of Whitley, 50 A.3d 203, 209 (Pa.Super. 2012), appeal
denied, 620 Pa. 724, 69 A.3d 603 (2013).
Instantly, with respect to Appellant’s fourth and fifth issues, the trial
court’s denial of Appellant’s motion for reconsideration is not subject to
appellate review. See Erie Ins. Exchange, supra. Additionally, Appellant
failed to raise her patent and latent ambiguity claims prior to filing her
motion for reconsideration on December 19, 2014. Thus, Appellant’s patent
and latent ambiguity claims are also beyond the scope of our review.
Therefore, Appellant’s fourth and fifth issues on appeal are waived. See
Rabatin, supra; Pa.R.A.P. 302(a).
As to Appellant’s sixth issue, Appellant’s entire argument consists of
one paragraph and cites no legal authority to support her claim that the trial
court misclassified certain Appellees in the case. Appellant’s severely
undeveloped argument section and lack of citation to pertinent authorities
constitutes waiver of her sixth issue for purposes of this appeal. See In re
Estate of Whitley, supra; Pa.R.A.P. 2101; 2119(a). Accordingly, we
affirm.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2015
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Circulated 10/16/2015 10:33 AM
IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
)
ANGEL N. FARMERIE )
)
Plaintiff, )
)
vs. ) No. 3527 of 2013
. )
JOHN B. KRAMER, ERA tECHNER )
& ASSOCIATES, INC., DOROTHY HARRISON, )
NORTH PITTSBURGH REALTY, LP, t/d/b/a )
KELLER WILLIAMS REALTY, FELIX J. )
KRYNICKY, METRO SETTLEMENT )
SERVICES, INC. )
)
Defetidants. )
)
) • -l .....
ORDER OF COURT
AND NOW, to wit, this 29th day of December, 2014, with it appearing to the Court that a
Notice of Appeal has been filed in the above-captioned matter at 2071 WDA 2014 by Appellant,
Angel N. Farmerie; it is hereby noted that the reasons for the Order of Court dated November 21,
2014 were set forth at len~ in said Order of Court. This Order is being entered to comply with
I
Pennsylvania Rule of Appellate Procedure 1925(a).
I
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Prothonotary
cc:
'
David L. Robinson, Esquire
William C. Stillwagon, Esquire
James L. Goldsmith, Esquire
Nichole E. Humes, Esquire
David B. White, Esquire
Carolyn B. McGee, Esquire
Daniel B. McLane, Esquire
;
1
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CNIL DIVISION
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