Phelps, N. v. Caperoon, L.

J-A04021-18

2018 PA Super 171

NIKOS FLOROS PHELPS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
LOUIS L. CAPEROON : No. 873 MDA 2017

Appeal from the Judgment Entered May 30, 2017
In the Court of Common Pleas of Dauphin County Civil Division at No(s):
2012-CV-10889-CV

NIKOS FLOROS PHELPS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LOUIS L. CAPEROON :
:
Appellant : No. 923 MDA 2017

Appeal from the Judgment Entered May 30, 2017
In the Court of Common Pleas of Dauphin County Civil Division at No(s):
2012-CV-10889-CV

BEFORE: STABILE, J., NICHOLS, J., and RANSOM, J.*

OPINION BY NICHOLS, J.: FILED JUNE 18, 2018

Appellant/Cross-Appellee Nikos Floros Phelps (Buyer) appeals from the

judgment entered following a bench trial on his claims under the Real Estate

Seller Disclosure Law (RESDL),1 Unfair Trade Practices and Consumer

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
1 68 Pa.C.S. §§ 7301-7315.
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Protection Law (UTPCPL),2 and fraudulent misrepresentation against

Appellee/Cross-Appellant Louis L. Caperoon (Seller). Seller, in turn, cross-

appeals from the order granting summary judgment in favor of Buyer on his

RESDL claim. We affirm in part, reverse in part, and remand for further

proceedings, as set forth below.

The trial court set forth the relevant facts below:

This matter stems from a residential real estate transaction
between [Buyer] and [Seller]. The subject property is located at
. . . Parkway East, Lower Paxton Township, Dauphin County,
Pennsylvania (hereinafter “the Property”). The Property consists
of a 165 year-old, 1,888 square-foot, two (2) story single family
home, with an unfinished basement, together with several
outbuildings (barn, garage, greenhouse structures) on 7.98 acres
of land. After negotiating, the parties agreed that [Buyer] would
lease the Property for a period of six (6) months, and at the end
of the lease term, [Buyer] would purchase the property. On June
30, 2010, the parties executed an Agreement of Sale
contemporaneous with a lease agreement.

Trial Ct. Op., 8/1/17, at 1-2.

Prior to signing the Agreement of Sale, Buyer inspected the Property

three times. R.R. at 52a-53a.3 During his inspections, Buyer testified he

asked Seller if there was anything he needed to know and Seller responded

that “everything was fine. There was nothing to be concerned with.” Id. at

54a. Buyer acknowledged that he chose not to hire a property inspector and

that he was aware that a seller should provide a RESDL disclosure statement.

____________________________________________

2 73 P.S. §§ 201-1 to 201-9.3.
3 We cite to the reproduced record for the parties’ convenience.

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Id. at 145a. Buyer stated he did not find it unusual that Seller did not provide

a RESDL disclosure statement in this case. Id.

Paragraph 11 of the Agreement of Sale provided as follows:

Inspection of Premises - Buyer certifies that he has personally
inspected the premises, or has caused it to be inspected in a
manner satisfactory to him. Buyer agrees that the property is in
satisfactory condition and repair. Buyer hereby acknowledges
that he is purchasing the property “as is”. Buyer expressly waives
any and all implied warranties to which the Buyer might be
entitled, and acknowledges that he was given no express
warranties.

Id. at 16a.

Buyer lived at the Property for six months under the lease. It was only

after Buyer purchased the Property, however, that he discovered numerous

deficiencies, including a deteriorated septic system requiring replacement; a

cracked furnace heat exchanger; leaky roof; flawed electrical wiring; water

damage from a never-connected washer drain; and various issues associated

with the improper removal of load-bearing walls and heating ducts.4 See

generally Compl., 1/8/13, at ¶ 7.

Buyer sued Seller, raising three claims: (1) violation of RESDL; (2)

violation of UTPCPL; and (3) fraudulent misrepresentation. With respect to

his first claim, Buyer averred that Seller failed “to disclose material defects,”

____________________________________________

4 At trial, Buyer testified that he did not discover these deficiencies during his
six-month lease term because they were “hidden.” R.R. at 64a.

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in the disclosure form required by RESDL. Compl., 1/8/13, at ¶¶ 4, 9. With

respect to his claim for RESDL damages, Buyer alleged as follows:

The total damages suffered by [Buyer] as a result of [Seller’s]
failure to disclose material defects, as required by [RESDL] are
unknown precisely, as [Buyer] continues to investigate the best
and most cost-effective solutions to the various problems, but said
damages are currently estimated to be approximately
$120,000.00. [Buyer] reserves the right to supplement this
averment as his investigation continues.

Compl., 1/8/13, at ¶ 9; id. ad damnum cl.

Seller admitted that he did not provide Buyer a RESDL disclosure form.

Answer, 5/6/13, at ¶ 4. Seller further averred that he “did not disclose any

of the material defects alleged [by Buyer] solely because no such defects

existed or were known to [Buyer] at the time the Agreement of Sale was

entered into.” Id. Seller additionally asserted that no disclosure was required

because it was a sale of commercial property. Id. at ¶ 9.

At the close of discovery, Buyer moved for partial summary judgment

on Seller’s liability under RESDL. Seller filed an answer and cross-motion for

summary judgment on all of Buyer’s claims. Buyer, in turn, filed an answer

in opposition to Seller’s cross-motion.

Following a hearing, the trial court denied Seller’s cross-motion and

granted Buyer’s motion for partial summary judgment on Buyer’s liability

under RESDL. The court reasoned that the “provisions of the [RESDL] cannot

be waived.” Order, 4/23/15. The court ordered that Seller “is liable to [Buyer]

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for all damages, if any, resulting from the material defects alleged in [Buyer’s]

Complaint, in an amount to be proven by [Buyer] at trial.” Id.

On December 13 and 29, 2016, the trial court held a bench trial.5 Buyer

did not orally move for or file a motion for a directed verdict at the close of

evidence.

On May 4, 2017, the trial court awarded damages of $39,065.02 to

Buyer for Seller’s violation of RESDL with respect to “(1) the defective roof

and resulting water damage; and (2) re-wiring of the electric which resulted

in hidden junction boxes and open air splices.”6 Memo. Op. & Order, 5/4/17,

at 13. The court found in favor of Seller on Buyer’s remaining claims of

UTPCPL and fraudulent misrepresentation. Id.

Buyer filed a timely post-trial motion that, in relevant part, challenged

the trial court’s award of RESDL damages. Buyer claimed that the court

miscalculated RESDL damages and did not consider whether he was entitled

to additional damages of $194,692.82, representing consequential and

____________________________________________

5 We provide a more detailed summary of the relevant trial testimony in our
discussion of Buyer’s claim for RESDL damages below.
6 The trial court prematurely entered judgment in favor of Buyer before the
filing of post-trial motions.

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difference-in-value damages under Skurnowicz v. Lucci, 798 A.2d 788, 795

(Pa. Super. 2002).7

The trial court denied Buyer’s post-trial motion on May 24, 2017, before

Seller filed a response. The court formally entered judgment on May 30, 2017,

and Buyer timely appealed on May 31, 2017. Although Seller did not file a

post-trial motion, he timely cross-appealed on June 9, 2017.8 Each party filed

a timely court-ordered Pa.R.A.P. 1925(b) statement. Seller’s Rule 1925(b)

statement claimed that the existence of the “as is” statement in the

Agreement of Sale precluded any RESDL liability. Seller’s Pa.R.A.P. 1925(b)

Statement, 6/23/17, at 1-2.

Seller’s Cross-Appeal at 923 MDA 2017

For ease of disposition, we first resolve the cross-appeal of Seller, who

raises the following issue:

1. Whether the Summary Judgment Court erred in granting
[Buyer’s] motion for partial summary judgment when it found, as
a matter of law, that the inclusion of an “as is” clause in the
Agreement to purchase real estate was not sufficient to put
[Buyer] on notice that there may be liabilities attendant to the
purchase and relieve [Seller] of the obligation to provide a seller’s
disclosure form?

____________________________________________

7 Although Buyer failed to move for a directed verdict, he also contended in
his post-trial motion that the trial court overlooked facts that would have
justified judgment notwithstanding the adverse decision in his favor on his
UTPCPL and fraudulent representation claims.
8We note that Seller’s appellate issues relate to the trial court’s order granting
summary judgment on Buyer’s RESDL claim. We add that this Court
consolidated both parties’ appeals for disposition.

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2. Whether the Trial Court erred when it failed to find that [Seller]
was entitled to an “advice of counsel” defense as to all of the
allegations of [Buyer’s] complaint?

Seller’s Brief at 4.

Seller’s First Issue – The “As Is” Clause

In support of his first issue, Seller contends that no Pennsylvania

appellate court has ruled on whether an “as is” clause in a real estate sales

contract negates the disclosure requirement set forth within RESDL, a statute.

Seller’s Brief at 35-36. Seller relies on PBS Coals, Inc. v. Burnham Coal

Co., 558 A.2d 562 (Pa. Super. 1989), which he claims controls, even though

it predates RESDL.9 Id. at 33-34.

Our standard of review follows:

When a party seeks summary judgment, a court shall enter
judgment whenever there is no genuine issue of any material fact
as to a necessary element of the cause of action or defense that
could be established by additional discovery. A motion for
summary judgment is based on an evidentiary record that entitles
the moving party to a judgment as a matter of law. In considering
the merits of a motion for summary judgment, a court views the
record in the light most favorable to the nonmoving party, and all
____________________________________________

9 PBS Coals also predates the materially similar statutory predecessor to
RESDL, the Real Estate Seller Disclosure Act (“RESDA”), 68 P.S. §§ 1021-
1036, which was enacted in 1996.

Seller also cites and discusses two trial court cases that purportedly
support his position. Seller’s Brief at 36. It is well-settled, however, that trial
court decisions are not binding on this Court. Echeverria v. Holley, 142 A.3d
29, 36 n.2 (Pa. Super. 2016). Regardless, in Pritt v. Duracinsky, 2003 WL
25460449 (C.C.P. Lehigh Cty. Nov. 25, 2003), the seller actually provided a
RESDL disclosure. Id. at ¶ 18. In Vaughn v. Drab, 73 Pa. D. & C.4th 550
(C.C.P. Allegheny Cty. 2005), the seller also provided a RESDL disclosure
statement. Id. at 553-54. Thus, both cases are distinguishable.

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doubts as to the existence of a genuine issue of material fact must
be resolved against the moving party. Finally, the court may grant
summary judgment only when the right to such a judgment is
clear and free from doubt. An appellate court may reverse the
granting of a motion for summary judgment if there has been an
error of law or an abuse of discretion.

Erie Ins. Exch. v. Moore, 175 A.3d 999, 1008 (Pa. Super. 2017) (citation

omitted).

The rules of statutory construction are well-settled:

The Statutory Construction Act, 1 Pa.C.S. §§ 1901-1991, sets
forth principles of statutory construction to guide a court’s efforts
with respect to statutory interpretation. In so doing, however, the
Act expressly limits the use of its construction principles. The
purpose of statutory interpretation is to ascertain the General
Assembly’s intent and to give it effect. In discerning that intent,
courts first look to the language of the statute itself. If the
language of the statute clearly and unambiguously sets forth the
legislative intent, it is the duty of the court to apply that intent
and not look beyond the statutory language to ascertain its
meaning. Courts may apply the rules of statutory construction
only when the statutory language is not explicit or is ambiguous.

. . . We must read all sections of a statute together and in
conjunction with each other, construing them with reference to
the entire statute. When construing one section of a statute,
courts must read that section not by itself, but with reference to,
and in light of, the other sections. Statutory language must be
read in context, together and in conjunction with the remaining
statutory language.

Every statute shall be construed, if possible, to give effect to all
its provisions. We presume the legislature did not intend a result
that is absurd, impossible, or unreasonable, and that it intends
the entire statute to be effective and certain. When evaluating
the interplay of several statutory provisions, we recognize that
statutes that relate to the same class of persons are in pari
materia and should be construed together, if possible, as one
statute.

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Also, when interpreting a statute we must listen attentively to
what the statute says, but also to what it does not say.

Retina Assocs. of Greater Phila., Ltd. v. Retinovitreous Assocs., Ltd.,

176 A.3d 263, 270 (Pa. Super. 2017) (citations and internal quotation marks

omitted); see also 1 Pa.C.S. § 1928(a) (stating that for any statute that

derogates common law and was adopted after September 1, 1937, we do not

have to strictly construe that statute).

By way of background, RESDL, which became effective on December

20, 2001, applies “to all residential real estate transfers” except for certain

types of transfers, none of which are applicable here. See 68 Pa.C.S. § 7302.

Section 7303 provides as follows:

Any seller who intends to transfer any interest in real property
shall disclose to the buyer any material defects[10] with the
property known to the seller by completing all applicable items in
a property disclosure statement which satisfies the requirements
of section 7304 (relating to disclosure form).[11] A signed and

____________________________________________

10 RESDL defines “material defect” as follows:

A problem with a residential real property or any portion of it that
would have a significant adverse impact on the value of the
property or that involves an unreasonable risk to people on the
property. The fact that a structural element, system or subsystem
is near, at or beyond the end of the normal useful life of such a
structural element, system or subsystem is not by itself a material
defect.

68 Pa.C.S. § 7102.
11 Section 7304 provides for the following disclosures:

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____________________________________________

(1) Seller’s expertise in contracting, engineering, architecture or
other areas related to the construction and conditions of the
property and its improvements.

(2) When the property was last occupied by the seller.

(3) Roof.

(4) Basements and crawl spaces.

(5) Termites/wood destroying insects, dry rot and pests.

(6) Structural problems.

(7) Additions, remodeling and structural changes to the property.

(8) Water and sewage systems or service.

(9) Plumbing system.

(10) Heating and air conditioning.

(11) Electrical system.

(12) Other equipment and appliances included in the sale.

(13) Soils, drainage, boundaries and sinkholes.

(14) Presence of hazardous substances.

(15) Condominiums and other homeowners associations.

(16) Legal issues affecting title or that would interfere with use
and enjoyment of the property.

(17) Condition, if known, and location of all storm water facilities,
including a statement disclosing whether ongoing maintenance of
the storm water facilities is the responsibility of the property
owner or the responsibility of another person or entity.

68 Pa.C.S. § 7304(b).

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dated copy of the property disclosure statement shall be delivered
to the buyer in accordance with section 7305 (relating to delivery
of disclosure form) prior to the signing of an agreement of transfer
by the seller and buyer with respect to the property.

68 Pa.C.S. § 7303 (emphases added). Generally, a seller “should only be

required to reveal material defects with the actual physical structure of the

house, with legal impairments on the property, and with hazardous materials

located there.” Milliken v. Jacono, 60 A.3d 133, 140 (Pa. Super. 2012) (en

banc).

Section 7308 of RESDL imposes an affirmative duty on the seller:

The seller is not obligated by this chapter to make any specific
investigation or inquiry in an effort to complete the property
disclosure statement. In completing the property disclosure
statement, the seller shall not make any representations that the
seller or the agent for the seller knows or has reason to know are
false, deceptive or misleading and shall not fail to disclose a known
material defect.

68 Pa.C.S. § 7308.

The Pennsylvania Supreme Court “has recognized that the term ‘shall’

is mandatory for purposes of statutory construction when a statute is

unambiguous.” Koken v. Reliance Ins. Co., 893 A.2d 70, 81 (Pa. 2006)

(some internal quotation marks and citation omitted); accord SAS Inst., Inc.

v. Iancu, 138 S. Ct. 1348, 1354 (2018) (“The word ‘shall’ generally imposes

a nondiscretionary duty.” (citation omitted)).

In PBS Coals, a case that predates RESDL by over a decade, the parties

executed an agreement for the sale of real property that had been inspected

by both parties in the winter. PBS Coals, 558 A.2d at 563. The agreement

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provided that the sale of the property was “as is.” Id. at 564. In the spring,

“an acid water discharge was discovered” on the property that neither party

knew about. Id. at 563. The parties essentially disagreed over the meaning

of “as is” as to which party under the agreement should pay for and fix the

discharge. Id. at 564.

The PBS Coals Court noted that the “use of the term, ‘as is’ in the

context of a transfer of real property interests present[ed] a question of first

impression in Pennsylvania.” Id. at 564. After summarizing pertinent caselaw

from other jurisdictions, the Court held that the parties’ “agreement contained

a term which has common meaning; when something is accepted ‘as is’ the

buyer is put on notice that there may be liabilities attendant to the purchase.”

Id. The Court thus held that the buyer of the real property was obligated to

resolve the discharge because it purchased the property on an “as is” basis.

Id. at 565. Because PBS Coals predated RESDA and RESDL, the Court did

not address any statutory disclosure requirement.

Here, Seller essentially asks this Court to conclude that the “as is” clause

in a separate, distinct agreement of sale and the holding of PBS Coals permits

him to escape the obligatory statutory language of “shall” in Section 7303.

However, Seller does not refer us to any RESDL section or caselaw permitting

him to disregard the mandatory language of Section 7303. In fact, Seller does

not raise any statutory interpretation argument or argue that the Agreement

of Sale was a contractual waiver of Section 7303.

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In contrast, RESDL, which was enacted over a decade after PBS Coals,

contains mandatory language: “Any seller who intends to transfer any interest

in real property shall disclose to the buyer any material defects with the

property known to the seller.” 68 Pa.C.S. § 7303 (emphasis added); Koken,

893 A.2d at 81. RESDL contains no exceptions to the disclosure requirements,

including the presence of an “as is” clause in an agreement to transfer

residential real estate, and thus, Seller must comply.12 See 68 Pa.C.S. §

7303; Koken, 893 A.2d at 81; Retina Assocs. of Greater Phila., 176 A.3d

at 270.13 Thus, we conclude that Seller has not established that he does not

have to comply with RESDL’s disclosure requirement because of an “as is”

clause in an agreement of sale.

Seller’s Second Issue – Advice of Counsel

Seller’s second argument, which we quote in its entirety, is as follows:

[Seller], relying on the advice of counsel, sold the Property “as is”
and did not provide [Buyer] with a seller’s disclosure form. A good
faith reliance on the advice of counsel establishes a defense to a
____________________________________________

12 We perceive no conflict between the disclosure mandate of 68 Pa.C.S. §
7303, and inclusion of an “as is” provision in a real estate sales contract. Cf.
68 Pa.C.S. § 7313 (stating that RESDL “does not limit or abridge any obligation
for disclosure created by any other provision of law or that may exist in order
to avoid fraud, misrepresentation or deceit in the transaction”).
13 To the extent that Seller’s “as is” argument could be construed as a
contention that Buyer contractually waived the RESDL disclosure requirement,
Seller has not identified facts establishing Buyer’s intent to affirmatively
relinquish the statutory right to disclosure. See Brown v. City of
Pittsburgh, 186 A.2d 399, 401 (Pa. 1962).

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under the Dragonetti[14] statute (Miller v. St. Luke's Univ.
Health Network, 142 A.3d 884, 897 ([Pa. Super.] 2016), appeal
denied, 164 A.3d 479 (Pa. 2016)) and should also establishes a
good faith defense under the RESDL.

Because of his reliance on the advice of counsel, [Seller’s]
violation of the RESDL was not willful or negligent and he should
not be liable to [Buyer] for any damages under the RESDL.

Seller’s Brief at 37.

Initially, Seller’s reliance on Miller is inapt because the language of the

Dragonetti statute explicitly permits a defense of “advice of counsel.” 15 See

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14 “[A]llegations of malicious prosecution invoke Pennsylvania’s statutory law
in the form of the wrongful use of civil proceedings statute or ‘Dragonetti Act.’”
Werner v. Plater-Zyberk, 799 A.2d 776, 785 (Pa. Super. 2002) (citation
omitted).
15One element of a cause of action for wrongful use of civil proceedings is the
absence of probable cause:

(a) Elements of action.—A person who takes part in the
procurement, initiation or continuation of civil proceedings against
another is subject to liability to the other for wrongful use of civil
proceedings:

(1) he acts in a grossly negligent manner or without probable
cause and primarily for a purpose other than that of securing
the proper discovery, joinder of parties or adjudication of the
claim in which the proceedings are based; and

(2) the proceedings have terminated in favor of the person
against whom they are brought.

42 Pa.C.S. § 8351(a).

The “probable cause” required to pursue the above claim, however, may
not be established if the following element (among others) is met:

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42 Pa.C.S. § 8352(2). RESDL does not. See 68 Pa.C.S. §§ 7301-7315. Seller

has not cited or otherwise argued that the mandatory language of 68 Pa.C.S.

§ 7303 regarding the provision of a seller’s disclosure can be negated by

“advice of counsel.” See 68 Pa.C.S. § 7303. Accordingly, Seller has not

established entitlement to relief.

Buyer’s Appeal at 873 MDA 2017

Buyer raises three issues:

1. Whether, under the Real Estate Seller Disclosure Law, damages
are recoverable consisting of: (a) the difference in value between
the actual market value of the property at the time of the
transaction and the higher price the buyer paid as a result of the
seller’s failure to provide the statutorily required disclosures;
and/or (b) consequential damages, including the cost to replace a
roof?

2. Whether a buyer of residential real estate, who was in a
fiduciary relationship with and relied on the seller, may recover
damages under the Unfair Trade Practices and Consumer
Protection Law where the seller failed to disclose defects in
violation of a statutory duty to do so; actively concealed defects;
and falsely said that the property was without major problems, if

____________________________________________

A person who takes part in the procurement, initiation or
continuation of civil proceedings against another has probable
cause for doing so if he reasonably believes in the existence of the
facts upon which the claim is based, and either:

...

(2) believes to this effect in reliance upon the advice of counsel,
sought in good faith and given after full disclosure of all
relevant facts within his knowledge and information[.]

42 Pa.C.S. § 8352(2).

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the agreement of sale contains an “as is” clause and an integration
clause?

3. Whether a buyer of residential real estate, who was in a
fiduciary relationship with and relied on the seller, may recover
for fraudulent misrepresentation where the seller failed to disclose
defects in violation of a statutory duty to do so; actively concealed
defects; and falsely said that the property was without major
problems, if the agreement of sale contains an “as is” clause and
an integration clause?

Buyer’s Brief at 3.

Buyer’s First Issue - RESDL Damages

Before addressing Buyer’s arguments in support of his first claim, we

briefly summarize the relevant damages testimony presented at trial. Ray

Woof, Jr., a real estate appraiser, testified for Buyer. R.R. at 189a. Woof

valued the Property at $200,000 with all of its issues and opined that the

Property would have been worth $325,000, had it been in average condition.

Id. at 193a-94a; see also id. at 519a-540a (Woof’s appraisal report).

Buyer’s counsel also moved into evidence Plaintiff’s Exhibit 9, which was a

letter from witness Dwayne Gilbert16 estimating that the cost to replace the

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16 Although the trial court suggested that Buyer did not move Plaintiff’s Exhibit
9 into evidence, the record establishes that Buyer’s counsel stated that he was
not going to move into evidence certain exhibits “up to Tab 9.” R.R. at 181a.
The next page of the transcript states that Buyer moved Tab 9 into evidence
without objection. Id. at 182a.

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Property’s roof and beams was $60,318.30.17 Id. at 181a; see also id. at

517a (exhibit labeled “Plaintiff’s Ex. 9”).

Buyer’s First Argument in Support of His First Issue

We summarize the first of Buyer’s two arguments. Buyer notes that a

RESDL disclosure form requires a seller to disclose, among other things, issues

with any structural items, issues with the roof, and any additions or

remodeling. Buyer’s Brief at 19-20. Buyer then discusses various issues with

the Property that he believed should have been included in a disclosure

statement. Id. Buyer asserts that under RESDL, he is entitled to “actual

damages” in the form of difference-in-value and consequential damages. Id.

at 21-23 (citing Skurnowicz v. Lucci, 798 A.2d 788, 795 (Pa. Super. 2002),

and Vallies v. Sky Bank, 591 F.3d 152 (3d Cir. 2009)).18 Buyer concludes

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17 In relevant part, the letter states that the Property “will need a complete
roof replacement due to broken trusses and damage created by multiple long-
term leaks. Estimated cost is $60,318.30. Also, once the roof is removed we
will inspect the top plate to make sure there is no existing damage before
installing the new roof trusses.” R.R. at 517a.
18 “[I]t is well-settled that this Court is not bound by the decisions of federal
courts, other than the United States Supreme Court, or the decisions of other
states’ courts.” Eckman v. Erie Ins. Exch., 21 A.3d 1203, 1207 (Pa. Super.
2003) (citation omitted). The Eckman Court further acknowledged that our
Courts “recognize that we are not bound by these cases; however, we may
use them for guidance to the degree we find them useful and not incompatible
with Pennsylvania law.” Id. (citation omitted).

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that the court erred by rejecting Woof’s opinion establishing difference-in-

value damages. Id. at 21.

Skurnowicz and Vallies, the Cases Cited by Buyer

In Skurnowicz, the sellers, in 1997, provided a real estate disclosure

statement disclaiming any knowledge of flooding issues with the property.19

Skurnowicz, 798 A.2d at 791. The buyers took possession and subsequently,

the property was flooded. Id. at 792.

The buyers in Skurnowicz sued, raising “claims for fraudulent

misrepresentation, negligent misrepresentation, breach of implied warranty of

habitability, and violation of Unfair Trade Practices Act.” Id. Notably, the

buyers raised no claim for a violation of RESDA, the statutory predecessor to

RESDL.

Following a bench trial, the trial court in Skurnowicz found for the

buyers for their claims of fraudulent and negligent misrepresentation, and

violation of the UTPCPL, and awarded approximately $30,000 in damages. Id.

Both parties appealed and, among many other issues, challenged the amount

of damages awarded as a result of the seller’s fraudulent misrepresentation.

Id. at 795.

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19 We note the property sale predated December 20, 2001, the effective date
of RESDL.

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This Court in Skurnowicz stated that when the aggrieved party elects

to not

rescind the [underlying real estate sales] contract, it may recover
damages equal to: (1) the difference in value between the real,
or market, value of the property at the time of the transaction and
the higher, or fictitious, value which the buyer was induced to pay
for it; and (2) the consequential damages suffered in reliance on
the defendant’s misrepresentation.

Id. (internal quotation marks and citations omitted).

Although summarizing the law for damages for a tort claim of fraudulent

misrepresentation following a property transaction, the Skurnowicz Court did

not address the definition of “actual damages” for a RESDA violation. Rather,

the Skurnowicz Court held that the buyers waived their argument that the

sellers violated RESDA because the buyers failed to include it in their Pa.R.A.P.

1925(b) statement.20 Id.

Buyer also cites Vallies, in which the United States Court of Appeals for

the Third Circuit resolved “whether a plaintiff must prove detrimental reliance

in order to recover actual damages sustained because of a disclosure violation

under § 1640(a) of the Truth in Lending Act (‘TILA’), 15 U.S.C. §§ 1601–67.”21

____________________________________________

20Presumably, even if the issue was included in the Rule 1925(b) statement,
the Court would not have granted relief because there was no RESDA claim.
21 Briefly:

Congress enacted TILA in 1968 to promote the informed use of
credit. To achieve this goal, TILA sought to assure a meaningful
disclosure of credit terms so that the consumer will be able to

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J-A04021-18

Vallies, 591 F.3d at 154 (footnote omitted). Section 1640(a) of TILA states

in relevant part:

Except as otherwise provided in this section, any creditor who fails
to comply with any requirement imposed under this part . . . is
liable to such person in an amount equal to the sum of . . . any
actual damage sustained by such person as a result of the failure
....

15 U.S.C. § 1640(a).

In the course of resolving that particular question, the Vallies Court

reviewed TILA’s statutory language providing for “actual damage.”

The definition of the term “actual damages” is “[a]n amount
awarded to a complainant to compensate for a proven injury or
loss; damages that repay actual losses.” Black’s Law Dictionary
445 (9th ed. 2009). Coupled with the phrase “sustained by such
person as a result of the failure,” the statute “links the loss to the
failure to disclose.” The plain meaning of § 1640(a) requires
causation to recover actual damages. In the context of TILA
disclosure violations, a creditor’s failure to properly disclose must
cause actual damages; that is, without detrimental reliance[22] on
faulty disclosures (or no disclosure), there is no loss (or actual
damage).

____________________________________________

compare more readily the various credit terms available to him
and avoid the uninformed use of credit. A consumer who does not
receive the requisite disclosures regarding a loan secured by his
principal dwelling may rescind the loan agreement.

Deutsche Bank Nat’l Trust Co. v. Gardner, 125 A.3d 1221, 1224 (Pa.
Super. 2015) (citation omitted).
22“[E]very court of appeals that has spoken on this issue has required a
showing of detrimental reliance. Most district courts are in accord.” Vallies,
591 F.3d at 155 (footnotes to case citations omitted).

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J-A04021-18

Vallies, 591 F.3d at 157 (some citations omitted). That Court later explained

that the “compensatory remedy of actual damages is permitted only in cases

where the violation caused harm—where harm was ‘sustained by [the

consumer] as a result of’ the violation.” Id. at 158 (citation omitted).23

Seller’s Argument

Seller counters by observing that RESDL does not define the term

“actual damages.” Seller’s Brief at 19-20 (citing Gadbois v. Leb-Co.

Builders, 458 A.2d 555, 560 (Pa. Super. 1983)). Seller posits, however, that

in real estate cases, “actual damages” should be defined as the lesser of two

figures: (1) the difference in market value, and (2) the cost of repairs. Id.

According to Seller, had the Legislature intended to award difference-in-value

damages, it would have included that language in RESDL. Id. at 20-21. But

even if RESDL does permit difference-in-value damages, Seller argues that

Buyer’s expert testimony on this subject was not credible. Id. at 21.24

____________________________________________

23 See also Pa. Dep’t of Gen. Servs. v. U.S. Mineral Prods. Co., 898 A.2d
590, 607 (Pa. 2006) (noting that “in all events, we will not eliminate the basic
obligation on the part of those seeking to obtain compensation for property
damage to establish that the repairs effectuated . . . are fairly attributable to
the defendant’s conduct, product, or instrumentality giving rise to the
liability.” (citation omitted)).
24 Neither Buyer nor Seller addressed whether a buyer could affirmatively
“detrimentally rely” on negligent or willful misrepresentations or omissions
contained within an unprepared hypothetical Section 7303 disclosure. This is
in contrast to the more common scenario in which the property seller actually
provides a statutorily-required disclosure statement, but willfully or
negligently misrepresents or omits items in the statement, upon which the

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J-A04021-18

Gadbois, the Case Cited By Seller

In Gadbois, the buyers25 purchased new homes from the builder.

Gadbois, 458 A.2d at 556. After the buyers moved in, improperly working

sewer disposal systems resulted in raw sewage flooding their homes. Id. The

builder failed to fix the systems, and the buyers sued, raising claims of breach

of implied warranty of habitability and negligence. Id. The trial court ruled

in the buyers’ favor and awarded damages, concluding that the proper

measure of damages is “the difference in market value of the house as

warranted and as built, or, where the purchaser remains in possession, the

reasonable cost to repair.” Id. at 556-57 (internal quotation marks and

emphasis omitted).

On appeal, the Gadbois Court held that possession was not relevant.

Id. at 559. Rather,

the measure of damages in cases where a homeowner sues for
defective construction is the difference between the market value
of the house as constructed and the market value that the house
would have had if constructed as promised, with the qualification
that if it is reasonably practical to cure the defects in construction
by repairs, and if the cost of repairs does not exceed the difference
____________________________________________

buyer relied to its detriment. But given the absence of counseled argument
on this question, we presume solely for this decision that detrimental reliance
exists. Because neither party raised the issue, it is not before this Court. See
generally Blumenstock v. Gibson, 811 A.2d 1029, 1038 (Pa. Super. 2002)
(stating, it “is not enough simply to assert that a statement was ‘fraudulent’
and that reliance upon it induced some action. . . . Before fraud will be found,
a plaintiff must demonstrate that he justifiably relied on the false statement.”
(citations omitted)).
25 There were multiple plaintiffs in Gadbois.

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J-A04021-18

in market value, then the measure of damages is the cost of
repairs.

Id. This Court thus remanded to have the trial court award damages in an

amount equal to the difference between the market value of the properties as

constructed and the market value of the properties if they had been built with

working sewer disposal systems. Id. As in Skurnowicz, the Gadbois Court

did not define “actual damages” for a violation of any statutory disclosure

requirement.

The Law Pertinent to Buyer’s First Argument

Our standards of review are as follows:

Upon appeal of a non-jury trial verdict, we consider 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 this 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 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.

Nicholas v. Hofmann, 158 A.3d 675, 688-89 (Pa. Super. 2017) (citations

omitted).

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J-A04021-18

In determining whether the trial court properly construed RESDL, we

must analyze and interpret its statutory language. See Retina Assocs. of

Greater Phila., 176 A.3d at 270.

Section 7311(a) of RESDL explains that the seller’s failure to comply

with RESDL would result in liability for the buyer’s actual damages:

(a) General rule.—A residential real estate transfer subject to
this chapter shall not be invalidated solely because of the failure
of any person to comply with any provision of this chapter.
However, any person who willfully or negligently violates or fails
to perform any duty prescribed by any provision of this chapter
shall be liable in the amount of actual damages suffered by the
buyer as a result of a violation of this chapter. This subsection
shall not be construed so as to restrict or expand the authority of
a court to impose punitive damages or apply other remedies
applicable under any other provision of law.

Id. § 7311(a) (emphases added);26 see also 68 P.S. § 1032 (repealed 2000)

(statutory predecessor to Section 7311).

Recently, in Bailets v. Pa. Turnpike Comm’n, 181 A.3d 324 (Pa.

2018), the Pennsylvania Supreme Court was asked to define “actual damages”

as used in 43 P.S. § 1425 of the Whistleblower Law.27 Id. at 326. “Actual

____________________________________________

26 Because RESDL “does not limit or abridge any obligation for disclosure
created by any other provision of law or that may exist in order to avoid fraud,
misrepresentation or deceit in the transaction,” a plaintiff has other available
causes of action. 68 Pa.C.S. § 7313(a). For example, one such claim could
be fraud in the inducement. Youndt v. First Nat’l Bank of Port Allegany,
868 A.2d 539, 547 (Pa. Super. 2005) (discussing Blumenstock, 811 A.2d at
1037, and LeDonne v. Kessler, 389 A.2d 1123 (Pa. Super. 1978)).
27“A court, in rendering a judgment in an action brought under this act, shall
order, as the court considers appropriate, reinstatement of the employee, the

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J-A04021-18

damages,” however, was undefined, thus leaving the Bailets Court to resolve

whether “actual damages” included non-economic damages. Id. at 329. The

Court began by reiterating that Pennsylvania recognizes three categories of

damages:

Compensatory damages are such damages as measure the actual
loss, and are allowed as amends therefor. Exemplary, punitive,
or vindictive damages are such damages as are in excess of the
actual loss, and are allowed in theory when a tort is aggravated
by evil motive, actual malice, deliberate violence, or oppression
or fraud. . . . Of nominal damages, the definition is a trivial sum
awarded where a mere breach of duty or infraction of right is
shown with no serious loss sustained.

Id. at 332 (quoting Springer v. J.H. Somers Fuel Co., 46 A. 370, 371 (Pa.

1900) (per curiam order)).28

The Bailets Court concluded that because the parties articulated

different, but reasonable, definitions of “actual damages,” the phrase was

unclear and ambiguous such that it was compelled to examine legislative

intent. Id. Thus, the Court examined “the occasion and necessity for the

____________________________________________

payment of back wages, full reinstatement of fringe benefits and seniority
rights, actual damages or any combination of these remedies.” 43 P.S. §
1425.
28 We note that although the Bailets Court purported to quote the Springer
decision, it actually quoted from the reporter’s synopsis of the trial court’s jury
charge, and not from the actual Springer decision, which was a per curiam
order. See Springer, 46 A. at 372 (beginning of actual decision). The
Bailets Court also inadvertently cited to the order granting the petition for
allowance of appeal for Joseph v. Scranton Times L.P., 105 A.3d 655 (Pa.
2014), and not to the actual Joseph decision.

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J-A04021-18

[Whistleblower Law], the circumstances under which it was enacted, the

mischief to be remedied, and the object to be attained.” Id. at 333.

The Pennsylvania Supreme Court in Bailets subsequently noted that

the intent and goal of the Whistleblower Law was a remedial, protective

measure. Id. Because its primary purpose was protective in nature, the

Bailets Court concluded that the Whistleblower Law “must be liberally

construed to effect its salutary remedial object.” Id. In conjunction with

caselaw establishing that non-economic losses are actual losses, as well as

the other listed items of damages in the Whistleblower Law, the Court held

that “actual damages” includes non-economic losses. Id.; accord id. at 334

(noting “actual damages are synonymous with compensatory damages which,

of course, include damages for actual loss”).

Finally, we add that for a tort claim involving repairable property

damage, it is well-settled that “repair costs (capped by market value)

constitute the general measure of damages.” Pa. Dep’t of Gen. Servs. v.

U.S. Mineral Prods. Co., 898 A.2d 590, 607 (Pa. 2006).29

____________________________________________

29In contrast, “the general measure of damages for permanent harm to real
property is the diminution in market value attributable to the conduct,
product, or instrumentality giving rise to liability . . . .” U.S. Mineral Prods.,
898 A.2d at 607.

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J-A04021-18

The Parties’ Different Definitions of “Actual Damages” in RESDL

Initially, RESDL does not define the term “actual damages,” and no

Pennsylvania case has defined it. We therefore address the parties’ differing

definitions of “actual damages” in RESDL: Seller argues that the definition

should be the lesser of the difference-in-value and cost of repairs, citing

Gadbois, and Buyer contends the term includes difference-in-value and

consequential damages, citing Skurnowicz and Vallies.

Seller’s reliance on Gadbois is inapt. In Gadbois, the property buyers

sued for breach of implied warranty of habitability in contracts to build new

homes. Gadbois, 458 A.2d at 556. Here, because Buyer raised no such

claim, Seller cannot rely on the definition of “actual damages” discussed in

Gadbois. See Compl., 1/8/13, at ¶¶ 4, 9.

Next, we address Buyer’s position that “actual damages” includes

difference-in-value and consequential damages. Initially, we point out that

the Skurnowicz Court was asked to resolve the measure of damages for

fraudulent misrepresentation—not the measure of damages for a statutory

violation of RESDL. See Skurnowicz, 798 A.2d at 795 (noting that an

aggrieved party has the option of rescinding the real estate sales contract).

Thus, Skurnowicz is not helpful to Buyer.

Buyer, however, did cite Vallies. We acknowledge that although TILA

and RESDL have different purposes, both statutes award actual damages for

a failure to comply with statutory requirements, such as disclosure of credit

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J-A04021-18

terms for TILA and a disclosure of material defects for RESDL. Compare 15

U.S.C. § 1640(a), with 68 Pa.C.S. § 7311. The language of TILA awarding

actual damages mirrors the language of RESDL awarding actual damages.

See 15 U.S.C. § 1640(a)(1) (“actual damage sustained by such person as a

result of the failure” to disclose); 68 Pa.C.S. § 7311 (“actual damages suffered

by the buyer as a result of a violation” of RESDL). Ultimately, the Court of

Appeals for the Third Circuit in Vallies defined “actual damages” as

compensation for actual losses—identical to the Pennsylvania Supreme Court’s

equation of “actual damages” in the Whistleblower Law as synonymous with

compensatory damages, which include damages for actual losses. See

Vallies, 591 F.3d at 157; Bailets, 181 A.3d at 333-34. Even with the benefit

of Vallies and Bailets, however, it remains unclear as to whether the term

“actual damages” in RESDL includes difference-in-value, consequential

damages, both, or the lesser of the two. Like the Pennsylvania Supreme Court

in Bailets, we examine RESDL’s legislative history for guidance. See Bailets,

181 A.3d at 333.

Legislative History of RESDL

Our review reveals that the legislative history of RESDL sheds little light

on the intended meaning of “actual damages.” But the Legislature observed

that RESDL “is intended to protect the purchaser of real property, and the

method of protection is a disclosure statement that is included within the bill

that the seller has to complete so that presumably the buyer accurately knows

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J-A04021-18

what the seller knows about the property when the sale occurs.” See Pa.

Senate Journal 2138, June 18, 1996 (statement of Sen. David J. Brightbill).

Pennsylvania Senator Jake Corman elaborated on the consumer

protection purpose of RESDL:

[RESDL] is an attempt to make it not necessarily, let the buyer
beware—always the buyer should beware—but in fact we are
asking the sellers to disclose problems that they know exist in
their property, and that is all the bill does. It says if you know
there is a problem, then tell us there is a problem so that when
we buy your house we know what that is, and if we know upfront
and still agree to your price, then we know that the price was
worth whatever it is we are willing to pay, and we are also willing
to make the remediation necessary to correct the problems that
may be wrong with the property.

Id. at 2138-39 (statement of Sen. Jake Corman). In sum, the Pennsylvania

Legislature noted that RESDL protects the purchasers of real property and

ensures that both parties have some parity of knowledge regarding any issues

with the property. See id. (statements of Senators David J. Brightbill and

Jake Corman). Because of RESDL’s protective purpose, it must be liberally

construed to achieve its remedial goal. See Bailets, 181 A.3d at 333.

The Definition of “Actual Damages” in RESDL

For the foregoing reasons, including our recognition of RESDL’s

protective purpose, and in conjunction with caselaw addressing the measure

of repairable property damages in tort cases, see, e.g., U.S. Mineral Prods.,

898 A.2d at 607, for purposes of deciding the present case, we conclude

“actual damages” in Section 7311 of RESDL for a violation of the requirement

to produce a Section 7304 disclosure statement may be determined by the

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J-A04021-18

repair costs, capped by the market value of the property.30 The trial court did

not err as a matter of law. See Nicholas, 158 A.3d at 688-89.

Buyer’s Second Argument in Support of His First Issue

Having resolved the definition of “actual damages” in RESDL, we address

Buyer’s second argument in support of his first issue. Buyer alternatively

argues that even if the trial court correctly defined “actual damages” under

RESDL to the costs of repair, the court erred in calculating those damages.

Buyer’s Brief at 25. According to Buyer, the trial court erroneously found that

Buyer had not admitted into evidence an exhibit establishing the amount of

money to repair the Property’s roof. Id. at 25-28.

We agree with Buyer that the trial court erred in its calculation of the

amount of repairable damages. The trial court overlooked that Exhibit 9,

which provided an estimate to repair the roof, was admitted without objection.

See R.R. at 182a. The trial court thus erred when it believed that Buyer failed

to move that exhibit into evidence. See Nicholas, 158 A.3d at 688-89. We

____________________________________________

30We note that Buyer did not argue that it was entitled to difference-in-value
and consequential damages under 68 Pa.C.S. § 7311(a). See 68 Pa.C.S. §
7311(a) (“This subsection shall not be construed so as to restrict or expand
the authority of a court to impose punitive damages or apply other remedies
applicable under any other provision of law.”). Thus, absent counseled
argument, we do not address it. We add that no party has claimed that the
property damage was unrepairable and thus permanent. Finally, because of
our resolution, we need not address Buyer’s assertion that the trial court
improperly rejected Woof’s testimony on difference-in-value damages.

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J-A04021-18

therefore instruct the trial court on remand to recalculate the amount of actual

damages, which should include consideration of Exhibit 9.

Buyer’s Second and Third Issues - UTPCPL and Fraudulent
Misrepresentation

We need not summarize Buyer’s arguments in support of his second and

third claims except to note that Buyer has requested that this Court enter

judgment in his favor for his UTPCPL and fraudulent misrepresentation claims.

Buyer’s Brief at 38. We reiterate that Buyer, during trial, failed to move for a

directed verdict before filing a post-trial motion requesting that the trial court

enter judgment in his favor. Id.; see also Buyer’s Post-Trial Mot., 5/12/17,

at 4-8 (requesting that the trial court enter judgment in Buyer’s favor on these

two claims).

By way of background, “[p]ost-trial relief may not be granted unless the

grounds therefore, if available, were raised by an appropriate method at trial.”

Phillips v. Lock, 86 A.3d 906, 918 (Pa. Super. 2014) (citing Pa.R.C.P.

227.1(b)(1)). “[T]o preserve the right to request a JNOV post-trial, a litigant

must first request a binding charge to the jury or move for a directed verdict

or a compulsory non-suit at trial.” Youst v. Keck’s Food Serv., Inc., 94

A.3d 1057, 1071 (Pa. Super. 2014) (citation and brackets omitted). “[T]his

approach has the salutary effect of submitting the issue to the trial judge for

initial evaluation during trial, when the proofs are still fresh, and is consistent

with past practice and with” Pa.R.C.P. 227.1(b)(1). Commonwealth v. U.S.

Mineral Prods. Co., 927 A.2d 717, 725 (Pa. Cmwlth. 2007); see also

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J-A04021-18

Pa.R.C.P. 227.1(b)(1) cmt. (“A ground for a new trial or a judgment

notwithstanding the verdict may not be raised for the first time in the Motion

for Post-Trial Relief.” (emphasis added)).31 A motion for a directed verdict is

appropriate even in non-jury cases. See Nikole, Inc. v. Klinger, 603 A.2d

587, 593-94 (Pa. Super. 1992).32

Here, Buyer did not move, either orally or in writing, for a directed

verdict on any of his claims. It was only after the trial court rendered its

adverse decision that Buyer, in his post-trial motion, first raised his request

for judgment notwithstanding the court’s decision. Buyer’s Mot. for Post-Trial

Relief, 5/12/17, at 8. Buyer, therefore, failed to properly preserve his right

to request judgment notwithstanding the court’s decision. See Pa.R.C.P.

227.1(b)(1) & cmt.; Youst, 94 A.3d at 1071; Phillips, 86 A.3d at 918.

Buyer’s failure before the trial court, therefore, precludes him appellate relief

for his UTPCPL and fraudulent misrepresentation claims.

____________________________________________

31 See generally 10 Standard Pa. Practice 2d § 64.2 (stating, “it is a
prerequisite to the entry of JNOV that the party making the request for such
posttrial relief has made a request for . . . a motion for a directed verdict at
trial.” (footnote to citations omitted)). The reason is that “a party’s request
for JNOV cannot be granted in a situation where the [trial] court could not
have directed a verdict for that party.” Id. (footnote to citation omitted).
32Judges presiding over a bench trial render decisions; juries render verdicts.
See Sands v. Andino, 590 A.2d 761, 764 (Pa. Super. 1991).

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J-A04021-18

In sum, for the appeal at 873 MDA 2017, we affirm in part and reverse

in part the trial court’s order denying Buyer’s post-trial motion, and remand

for the limited purpose of recalculating Buyer’s actual damages for violating

the disclosure requirement of RESDL.33 For the cross-appeal at 923 MDA

2017, we affirm the order granting partial summary judgment in favor of

Buyer on his RESDL claim.

Judgment vacated. Order denying Buyer’s post-trial motion affirmed in

part and reversed in part. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/18/2018

____________________________________________

33 It is well-settled that a trial court cannot consider issues outside the scope
of a remand order. See Commonwealth v. Williams, 877 A.2d 471, 475
(Pa. Super. 2005).

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