J-A16029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ARI ENTERPRISES, LLC IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CYNTHIA L. MCGINLEY, AS
ADMINISTRATRIX FOR THE ESTATE OF
JOHN CAIACCIA AKA JOHN A. CAIACCIA
Appellee No. 1249 WDA 2015
Appeal from the Order August 5, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-15-007636
BEFORE: SHOGAN, OLSON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 17, 2016
Appellant, ARI Enterprises, LLC, appeals from the order entered on
August 5, 2015, which sustained the preliminary objections filed by Cynthia
L. McGinley, as administratrix for the estate of John Caiaccia a/k/a John A.
Caiaccia (hereinafter “Defendant”), and dismissed Appellant’s complaint with
prejudice. We vacate and remand.
On May 14, 2015, Appellant filed a complaint against Defendant,
seeking specific performance for the sale of real property. Appellant averred
that, on March 10, 2015, Defendant agreed to sell it certain real property,
located at 147 43rd Street, Pittsburgh, PA 15201, Lot and Block Number 49-
B-73 (hereinafter “147 43rd Street”), for $50,000.00. Appellant’s Complaint,
*Retired Senior Judge assigned to the Superior Court.
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5/14/15, at ¶ 3.1 Appellant averred that it paid Defendant the required
$1,000.00 earnest deposit; however, even though Defendant accepted the
earnest money, Defendant refused to deliver the real property, as per the
agreement. Id. at ¶¶ 6-11. Appellant requested that the trial court issue an
order directing Defendant to specifically perform under the agreement and
deliver the real property to Appellant. Id. at Wherefore Clause.
Moreover, Appellant attached the relevant agreement to its complaint.
In pertinent part, the agreement declares:
Agreement to Sell Real Estate
This Agreement is made on 10th of March 2015, between
John A Caiaccia, Seller, of 147 & 144 43rd St, City of
Pittsburgh, State of PA, and ARI Enterprises LLC, Buyer, of
1004 Fawn Valley Dr, City of Canonsburg, State of P.A.
15317.
The Seller now owns the following described real estate,
located at 144 & 147 43rd St, City of Pittsburgh, State of PA.
15201. . . .
For valuable consideration, the Seller agrees to sell and the
Buyer agrees to buy this property for the following price and
on the following terms:
1. The Seller will sell this property to the Buyer, free from
all claims, liabilities, and indebtedness, unless noted in this
Agreement.
____________________________________________
1
Appellant averred that John A. Caiaccia had owned the property while he
lived and, on August 19, 2003, Cynthia L. McGinley was granted Letters of
Administration for the Estate of John Caiaccia. Appellant’s Complaint,
5/14/15, at ¶¶ 4-5.
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...
3. The Buyer agrees to pay the Seller the sum of $84,900 –
Cash, which the Seller agrees to accept as full payment. . . .
4. The purchase price will be paid as follows:
Earnest deposit $1,000.00
(upon signing this Agreement)
Other deposit: $54,900.00
On or before 9-9-15
Cash or certified check on $29,000.00
closing . . .
Total Purchase Price $84,900 for both
147 43rd – 50,000
144 43rd – 34,900
84,900
5. The Seller acknowledges receiving the Earnest money
deposit of $1000.00 from the Buyer. If Buyer fails to
perform this Agreement, the Seller shall retain this money.
If Seller fails to perform this Agreement, this money shall
be returned to the Buyer or the Buyer may have the right of
specific performance. . . .
6. This Agreement will close on March 31, at 3:00 o’clock,
at 428 Forbes Ave, City of Pittsburgh, State of P.A. 15219.
At that time, and upon payment by the Buyer of the portion
of the purchase price then due, the Seller will deliver to
Buyer the following documents:
...
(b) A Warranty Deed for the real estate
(c) A Seller’s Affidavit of Title
(d) A Closing Statement
...
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16. Seller agrees to provide Buyer with a Real Estate
Disclosure Statement (or its equivalent that is acceptable in
the State in which the property is located) within five []
days of the signing of this Agreement. Upon receipt of the
Real Estate Disclosure Statement from Seller, Buyer shall
have five [] business days within which to rescind this
Agreement by providing Seller with a written and signed
statement rescinding this Agreement. The disclosures in
the real Estate Disclosure Statement are made by the seller
concerning the condition of the property and are provided
on the basis of the seller’s actual knowledge of the property
on the date of this disclosure. . . .
...
18. No modification of this Agreement will be effective
unless it is in writing and is signed by both the Buyer and
Seller. This Agreement binds and benefits both the Buyer
and Seller and any successors and assigns. Time is of the
essence of this Agreement. The acceptance of a deed by
the Buyer shall be considered full performance of every
obligation of the Seller under this Agreement. This
document, including any attachments, is the entire
agreement between the Buyer and Seller. This Agreement
is governed by the laws of the State of Pennsylvania.
/s_[Defendant]________
Signature of Seller
...
/s_[Appellant]_________
Signature of Buyer
Agreement of Sale, dated 3/10/15, at 1-5 (hereinafter “the Agreement” or
“Agreement of Sale”).
On June 22, 2015, Defendant filed preliminary objections to
Appellant’s complaint. As Defendant claimed, “[Appellant] attached [to its
complaint] . . . an integrated land sale agreement for two [] parcels of land,
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but [Appellant] seeks partial specific performance as to only one parcel (147
43rd Street . . .), [and] not the other parcel (144 43 rd Street . . .).”
Defendant’s Preliminary Objections, 6/22/15, at ¶ 2. Defendant argued that
“Pennsylvania does not recognize a cause of action for partial specific
performance of an integrated land sale agreement;” and, since Appellant’s
complaint seeks “partial specific performance of an integrated land sale
agreement,” Appellant’s complaint is legally insufficient and must be
dismissed. Id. at ¶¶ 5-8.
Further, Defendant claimed, “[t]itle to [144 43rd Street] is held by co-
owners [Defendant] and William Gialanella, as tenants in common;”
however, William Gialanella did not sign the written Agreement of Sale. Id.
at ¶¶ 11 and 13. Therefore, Defendant claimed, “the entire [Agreement of
Sale] . . . fails under the Statute of Frauds [and] . . . is void ab initio.” Id.
at ¶¶ 14-15.
Appellant responded to Defendant’s preliminary objections and denied
that it sought “partial specific performance.” Rather, Appellant claimed, it
sought specific performance for the sale of an entire, single, undivided parcel
of property – 147 43rd Street. Moreover, Appellant noted, within the
Agreement of Sale, the parties “clearly stat[ed] the total price for both
parcels, as well as the apportioned prices for each parcel. The Agreement
lists an apportioned price of $50,000.00 for the subject property, and an
apportioned price of $34,900.00 for 144 43rd Street.” Appellant’s Response,
7/20/15, at ¶¶ 2-6. Therefore, Appellant claimed, under the Agreement, the
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sale of 147 43rd Street is divisible from the sale of 144 43 rd Street – and
Appellant is entitled to receive specific performance for the sale of 147 43 rd
Street. Id. at ¶ 7.
Finally, Appellant responded to Defendant’s claim that the Agreement
of Sale is “void ab initio” because William Gialanella, the purported co-owner
of 144 43rd Street, did not sign the agreement. As Appellant argued, since
the Agreement is severable or divisible and since it was “not seeking specific
performance of 144 43rd Street,” “ownership of 144 43rd Street is irrelevant
to the within action.” Id. at ¶ 11.
The trial court held argument on Defendant’s preliminary objections
and, on August 5, 2015, the trial court entered an order sustaining the
preliminary objections and dismissing Appellant’s complaint with prejudice.
Trial Court Order, 8/5/15, at 1. Within its later-filed opinion to this Court,
the trial court declared that it dismissed Appellant’s complaint first because
William Gialanella was not a party to the Agreement and, thus, according to
the trial court, the Agreement was void ab initio. Trial Court Opinion,
9/29/15, at 2. Second, the trial court declared:
assuming arguendo that the Agreement was not void ab
initio, [the trial court] did not find that the intent of the
parties was clear. The [A]greement was for the sale of both
parcels. So regardless of whether the contract apportions
price terms for each parcel, Defendant’s intent may have
been to sell “both parcels” or none.
Id.
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Thus, even though the trial court could not determine the intent of the
parties, the trial court concluded that the contract was not severable or
divisible and that Appellant’s claim for specific performance failed. Id.
Appellant filed a timely notice of appeal on August 13, 2015.
However, on October 29, 2015, Appellant filed in this Court a petition for
remand, requesting that we remand the case to the trial court because of
newly discovered evidence. In relevant part, the petition declared:
5. Appellant’s Complaint requested a judgment directing
[Defendant] to specifically perform under the Agreement
with respect to 147 43rd Street only.
6. Appellant’s Complaint did not request a judgment
directing [Defendant] to specifically perform under the
Agreement with respect to 144 43rd Street, because the
public records reflected that the owners of said property
were John Caiaccia and William Gialanella.
7. [Defendant] filed preliminary objections and a brief in
support on June 22, 2015 and [] argued . . . that, “absent a
signed writing of William Gialanella, the entire [Agreement]
is void ab initio.”
8. The [trial court’s order] dismissed [Appellant’s]
complaint with prejudice. According to [its opinion,] the
trial court dismissed Appellant’s complaint because it agreed
with [Defendant] that the Agreement was void ab initio. . . .
9. Based upon the trial court’s opinion, it was obviously an
important fact that William Gialanella was a co-owner of
144 43rd Street but did not sign the Agreement.
10. . . . [O]n October 23, 2015[,] undersigned counsel
learned that [Defendant] was the sole owner of 144 43rd
Street at the time that the Agreement was entered into on
March 10, 2015. A true and correct copy of the deed to 144
43rd Street is attached hereto as Exhibit “2” which shows
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that title was transferred to [Defendant] on April 25, 2006
but that the deed was not recorded until September 29,
2015.
11. [Defendant] was aware that she was the owner of 144
43rd Street when she entered into the Agreement with
Appellant on March 10, 2015 and she was further aware
that she was the sole owner during the legal proceedings,
nevertheless, she let her attorney . . . make false
representations in her preliminary objections and in oral
argument to the trial court that she was not the owner of
144 43rd Street.
12. [Defendant] has clearly committed a fraud upon the
court by withholding material information that she was in
fact the owner of 144 43rd Street at all relevant times.
13. As the Superior Court is not a court of record, Appellant
is requesting that this matter be remanded back to the trial
court so that Appellant may introduce the deed [] into the
record for consideration by the trial court.
Appellant’s Petition for Remand, 10/29/15, at ¶¶ 5-13 (internal emphasis
and some capitalization omitted).
On November 6, 2015, we entered an order that deferred the
disposition of Appellant’s petition to the merits panel of this Court. Order,
11/6/15, at 1.
On appeal, Appellant raises the following claims:
[1.] Did the trial court commit an error of law when it
[sustained Defendant’s] preliminary objections by finding
that the Agreement of Sale is not severable because the
trial court failed to determine the intent of the parties and
because the plain meaning of the Agreement and the rules
of construction clearly show that the parties intended the
Agreement to be severable?
[2.] Did the trial court commit an error of law when it
[sustained Defendant’s] preliminary objections by finding
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that the Agreement of Sale is void ab initio because the
Agreement is severable and therefore not void ab initio as
to 147 43rd Street?
[3.] Should this Honorable Court remand the within matter
pursuant to the Rule 123 application for relief or petition to
request remand that was filed with the Court on October 29,
2015?
Appellant’s Brief at ix (some internal capitalization omitted).2
We have stated:
A preliminary objection in the nature of a demurrer is
properly [sustained] where the contested pleading is legally
insufficient. Preliminary objections in the nature of a
demurrer require the court to resolve the issues solely on
the basis of the pleadings; no testimony or other evidence
outside of the complaint may be considered to dispose of
the legal issues presented by the demurrer. All material
facts set forth in the pleading and all inferences reasonably
deducible therefrom must be admitted as true.
In determining whether the trial court properly sustained
preliminary objections, the appellate court must examine
the averments in the complaint, together with the
documents and exhibits attached thereto, in order to
evaluate the sufficiency of the facts averred. The impetus
of our inquiry is to determine the legal sufficiency of the
complaint and whether the pleading would permit recovery
if ultimately proven. This Court will reverse the trial court’s
decision regarding preliminary objections only where there
has been an error of law or abuse of discretion. When
sustaining the [preliminary objections] will result in the
denial of claim or a dismissal of suit, [the preliminary
objections may be sustained] only where the case [is] free
and clear of doubt.
____________________________________________
2
For ease of discussion, we have re-ordered Appellant’s claims on appeal.
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Lugo v. Farmers Pride, Inc., 967 A.2d 963, 966 (Pa. Super. 2009)
(internal citations, quotations, and corrections omitted).
With respect to contract interpretation, our Supreme Court has held:
The fundamental rule in interpreting the meaning of a
contract is to ascertain and give effect to the intent of the
contracting parties. The intent of the parties to a written
agreement is to be regarded as being embodied in the
writing itself. The whole instrument must be taken together
in arriving at contractual intent. Courts do not assume that
a contract’s language was chosen carelessly, nor do they
assume that the parties were ignorant of the meaning of the
language they employed. When a writing is clear and
unequivocal, its meaning must be determined by its content
alone.
Only where a contract’s language is ambiguous may
extrinsic or parol evidence be considered to determine the
intent of the parties. A contract contains an ambiguity if it
is reasonably susceptible of different constructions and
capable of being understood in more than one sense. This
question, however, is not reviewed in a vacuum. Instead,
contractual terms are ambiguous if they are subject to more
than one reasonable interpretation when applied to a
particular set of facts.
Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 429-430
(Pa. 2001) (internal quotations and citations omitted). Moreover, “[i]t has
long been accepted in contract law that an ambiguous written instrument
presents a question of fact for resolution by the finder-of-fact, whereas the
meaning of an unambiguous written instrument presents a question of law
for resolution by the court.” Cmty. Coll. of Beaver County v. Cmty. Coll.
of Beaver County, Soc. of the Faculty (PSEA/NEA), 375 A.2d 1267,
1275 (Pa. 1977).
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Appellant first claims that the trial court erred in holding – at the
preliminary objection stage – that the Agreement was entire and not
severable. We agree.
In the case at bar, Appellant and Defendant entered into a single
agreement for the sale of two separate properties; yet, in Appellant’s
complaint, Appellant requested specific performance for the sale of only one
of the properties covered by the Agreement. Under Pennsylvania law, a
plaintiff may not receive “partial specific performance of an indivisible
contract for the sale of land.” Jones v. Gravity Fill Serv. Station, 64 A.2d
490, 492 (Pa. 1949). Nevertheless, in the trial court, Appellant contended
that the Agreement was divisible and that Appellant could thus seek specific
performance for the sale of 147 43rd Street – and yet not seek specific
performance for the sale of 144 43rd Street. The trial court held otherwise
and declared that the Agreement was not severable or divisible. According
to the trial court, it concluded that the agreement was not severable
because it “did not find that the intent of the parties was clear” regarding
severability and that, even though the “contract apportion[ed] price terms
for each parcel, Defendant’s intent may have been to sell ‘both parcels’ or
none.” Trial Court Opinion, 9/29/15, at 2.
As Appellant argues on appeal, the trial court concluded that the
Agreement was not severable and yet “entirely failed to make a
determination regarding the dispositive question – the intent of the parties.”
Appellant’s Brief at 4. Further, Appellant claims that the trial court’s ruling
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and determination in this case violated “the well[-]established standard of
review for preliminary objections in the nature of a demurrer.” Id. at 4-5.
We agree and thus vacate the trial court’s order.
As our Supreme Court has held, to determine whether a contract is
entire or severable:
there is no bright line rule requiring that a court first find
that the intent of the parties is unclear as to
entirety/severability before it may look to factors such as
the conduct of the parties and the character of the
consideration to determine whether an agreement is entire
or severable. The central task is to ascertain the intent of
the parties. That intent may be apparent from the explicit
language of the contract . . . or it may be obvious from a
“construction” of the agreement, including the nature of the
consideration. . . . In short, principles of construction may
reveal the intent of the parties no less than the actual
language addressing entirety/severability. Thus, [the
Supreme] Court holds that, absent express language that a
contract is entire, a court may look to the contract as a
whole, including the character of the consideration, to
determine the intent of the parties as to severability and
may also consider the circumstances surrounding the
execution of the contract, the conduct of the parties, and
any other factor pertinent to ascertaining the parties' intent.
The court need not make a specific predicate finding of
ambiguity before undertaking the inquiry – indeed, if the
contract were crystal clear as to the parties’ intent,
severability likely would not be a contested issue.
Jacobs v. CNG Transmission Corp., 772 A.2d 445, 452 (Pa. 2001).
Here, the parties failed to include express language, in the Agreement
of Sale, regarding the severability (or non-severability) of the contract.
Therefore, in accordance with the Jacobs Court’s holding, a court must “look
to the contract as a whole, including the character of the consideration, to
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determine the intent of the parties as to severability and may also consider
the circumstances surrounding the execution of the contract, the conduct of
the parties, and any other factor pertinent to ascertaining the parties’
intent.” Id. Yet, as is evident, certain of these considerations lie completely
outside of a court’s scope of review at the preliminary objection stage of the
proceedings. Indeed, the pleadings and the four-corners of the Agreement
here do not shed any light on the “the circumstances surrounding the
execution of the contract,” “the conduct of the parties,” or “other factor[s]
pertinent to ascertaining the parties’ intent” – such as the spatial
relationship between the properties; whether the properties lie directly next
to one another; whether the individual properties were contracted to be sold
at fair market value; whether (or not) Defendant agreed to a discounted
purchase price if Appellant agreed to purchase both properties; whether (or
not) Appellant agreed to an increased purchase price if Defendant agreed to
sell both properties; or, as the trial court notes, whether Defendant intended
to “sell both parcels or none.” Trial Court Opinion, 9/29/15, at 2 (internal
quotations omitted). Moreover, the “character of the consideration” is
ambiguous as to the parties’ intent regarding severability. This is because
Appellant and Defendant established a single price for the sale of two
separate properties, but then apportioned the prices for the individual
properties. See Agreement of Sale, dated 3/10/15, at ¶¶ 3-4; see also
Brown v. Exeter Mach. Works, 60 Pa. Super. 365, 368 (1915) (“[i]f the
part to be performed by one party consists of several distinct items and the
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price to be paid by the other is apportioned to each item or is left to be
implied by law, generally the contract is held to be severable”).
Thus, at this stage of the proceedings, we agree with the trial court
that the parties’ intent regarding severability is simply not clear. Trial Court
Opinion, 9/29/15, at 2. Given this fact, the trial court should not have
sustained Defendant’s preliminary objections. Simply stated, the pleadings
and the four-corners of the Agreement do not “say[] with certainty that no
recovery is possible.” Griffin v. Rent-A-Center, Inc., 843 A.2d 393, 394-
395 (Pa. Super. 2004). The trial court therefore abused its discretion when,
at the pleadings stage, it concluded that the Agreement was not severable,
sustained Defendant’s preliminary objections, and dismissed Appellant’s
complaint.
With respect to Appellant’s second claim, Appellant contends that the
trial court erred when it sustained Defendant’s preliminary objections “by
finding that the Agreement of Sale is void ab initio because the Agreement is
severable and therefore not void ab initio as to 147 43rd Street.” Appellant’s
Brief at ix. We have concluded that the trial court erred in holding that the
Agreement was not severable. Therefore, even if the Agreement is void as
to 144 43rd Street,3 Appellant has successfully pleaded a cause of action for
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3
Obviously, the averments contained in (and the exhibits attached to)
Appellant’s Petition for Remand place grave doubt upon the determination
that the agreement to sell 144 43rd Street is void ab initio.
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specific performance as to 147 43rd Street. Barb-Lee Mobile Frame Co. v.
Hoot, 206 A.2d 59, 61 (Pa. 1965) (“where a contract is divisible[,] one part
of it may be void while the other is not”) (internal quotations and citations
omitted). The trial court erred in holding otherwise.4
Petition for Remand denied as moot. Order vacated. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2016
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4
Since we are remanding this case to the trial court, we deny Appellant’s
“Petition for Remand” as moot.
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