Rand, J. v. Young, B. v. Barristers Land Abstract

J-A13011-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JORY AND JOEANNA RAND, : IN THE SUPERIOR COURT OF
HUSBAND AND WIFE : PENNSYLVANIA
:
:
v. :
:
:
BRIAN J. YOUNG, AN ADULT :
INDIVIDUAL & CHARLES J. YOUNG, : No. 1375 WDA 2017
AND CAROLYN G. YOUNG, HUSBAND :
AND WIFE, & BRANDON T. COLELLA :
CONSTRUCTION, INC., A :
PENNSYLVANIA CORPORATION, & :
WIN REALTY ADVISORS, LLC., A :
PENNSYLVANIA LIMITED LIABILITY :
COMPANY, F/K/A WIN REALTY PA, :
LLC. :
:
:
v. :
:
:
BARRISTERS LAND ABSTRACT CO., A :
PENNSYLVANIA CLOSE :
CORPORATION, & CAPITAL REGION :
LAND TRANSFER, INC., A :
PENNSYLVANIA CORPORATION :
D/B/A/ BARRISTERS LAND :
ABSTRACT COMPANY :
:
:
APPEAL OF: BRIAN J. YOUNG :

Appeal from the Judgment Entered August 29, 2017
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD 13-007617

BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED JULY 13, 2018
J-A13011-18

Appellant, Brian J. Young, appeals from the judgment entered on August

29, 2017 in favor of Jory and Joeanna Rand (the Rands). We affirm.

We briefly summarize the facts and procedural history of this case as

follows. Appellant, a licensed real estate agent, is in the business of

purchasing older homes, remodeling them, and selling them for a profit. In

2010, Appellant purchased a 100-year-old, three-story home with a detached

garage in the Southside area of Pittsburgh, Pennsylvania. Appellant hired

Brandon T. Colella as the contractor in charge of renovations for the project.

To create a more open floor plan on the main floor, Appellant directed Colella

to remove a load-bearing wall and replace it with support beams and columns.

The Rands purchased the remodeled house in August 2012. In December

2012, the roof leaked. The Rands replaced the roof in January 2013 and soon

thereafter noticed the floors in the house were sinking. An inspection revealed

that Appellant had not followed his engineer’s directives to secure a basement

column to the ground. The Rands spent approximately $70,000.00 to

remediate the overall damage.

In April 2013, the Rands sued Appellant, Appellant’s parents, Colella,

and Win Realty, Appellant’s real estate company.1 In September 2014,

Appellant filed a praecipe for a writ to join Barristers Land Abstract Co., the

____________________________________________

1 Prior to trial, Appellant’s parents were dismissed from the case. Colella
settled with the Rands prior to trial for $50,000.00. Appellant’s parents and
Colella are not parties to this appeal.

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J-A13011-18

settlement agent for the real estate transaction, as an additional defendant.2

The trial court held a four-day bench trial commencing on May 1, 2017. On

May 9, 2017, the trial court issued a verdict in favor of the Rands in the

amount of $35,764.35. More specifically, the trial court determined that

Appellant and Win Realty were jointly responsible for one-third of the verdict,

Barristers Land Abstract Co. owed one-third of the verdict, and Appellant

solely owed one-third of the verdict for violating the Unfair Trade Practices

and Consumer Protection Law (UTPCPL), 73 P.S. § 201-1. All of the parties

filed post-trial motions. The trial court granted the Rands’ request for counsel

fees and expenses under the UTPCPL totaling $12,286.54, as well as delay

damages of $3,161.57. The trial court denied all other requests for post-trial

relief. The trial court entered judgment on August 29, 2017. This timely

appeal resulted.3, 4

On appeal, Appellant presents the following issues for our review:

1. Whether the trial court’s decision that [Appellant] violated the
provisions of the Real Estate Seller Disclosure Law (“RESDL”)
by failing to disclose alleged defects of which [Appellant] either
had no knowledge of or which he reasonably assumed had been
____________________________________________

2 Barristers Land Abstract Co. is not a party to this appeal.

3 Appellant filed a notice of appeal on September 22, 2017. On September
26, 2017, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on October 16, 2017. On December 15, 2017, the trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a).

4 This appeal was filed on behalf of Appellant only. Win Realty is not a party
to this appeal.

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J-A13011-18

corrected is not supported by substantial evidence or [is]
erroneous as a matter of law[?]

2. Whether the trial court’s decision that [Appellant] allegedly
engaged in fraudulent or deceptive conduct thereby violating
the [UTPCPL]] is not supported by substantial evidence or [is]
erroneous as a matter of law?

3. Whether the trial court’s decision calculating the amount of the
Rands’ damages is not based upon substantial credible
evidence and includes work that was not causally related to the
alleged property defect?

Appellant’s Brief at 3-4.

We briefly summarize Appellant’s issues as follows. In his first two

issues, Appellant challenges the trial court’s findings that he knew that

remodeling work was not completed or performed correctly and proper

permits and final inspections were not obtained in violation the RESDL and

UTPCPL. Id. at 13-14, 22-24. Appellant contends that he reasonably relied

upon Colella, as his contractor, to obtain permits, perform all the necessary

work, and complete a final inspection. Id. at 16-17, 23-24. As such,

Appellant avers he was “without knowledge that the alleged material defects

existed or had not been corrected by Colella when he filled out the [d]isclosure

[s]tatement, or at any time thereafter up to the closing.” Id. at 17; see also

id. at 23. In his third issue presented, Appellant argues that the trial court

miscalculated the damages awarded to Rands.5 Id. at 24-27.
____________________________________________

5 More specifically, Appellant avers the trial court erred in accepting the Rands’
bill for remediation, because “[t]hat bill was a lump sum amount, and did not
itemize the amount the labor or material costs for any aspect of the
unspecified work.” Appellant’s Brief at 25. Appellant further claims that “[t]he

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J-A13011-18

Our standard of review in non-jury cases is limited to:

a determination of whether the findings of the trial court are
supported by competent evidence and whether the trial court
committed error in the application of law. Findings of the trial
judge in a non-jury case must be given the same weight and
effect on appeal as a verdict of a jury and will not be disturbed on
appeal absent error of law or abuse of discretion. 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.

Additionally, this Court has stated that we will respect a trial
court's findings with regard to the credibility and weight of the
____________________________________________

Rands changed the flooring from hardwood to bamboo because they liked it
better than the original” not because they corrected structural defects as
alleged. Id. at 26. He also contends that the trial court’s award was subject
“to [an] offset for [a] $30,000[.00] gain the Rands made on the [subsequent]
sale of the property and [for] the $50,000[.00] settlement from Colella.” Id.
at 26. Finally, Appellant claims that the Rands also rented the home for a
year prior to selling it and “[t]he amounts [the] Rands received in rent for the
property should further reduce their claim of loss.” Id. at 27.

However, upon review of the certified record, Appellant failed to raise
these contentions in his concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Our Supreme Court has stated:

Our jurisprudence is clear and well-settled, and firmly establishes
that: Rule 1925(b) sets out a simple bright-line rule, which
obligates an appellant to file and serve a Rule 1925(b) statement,
when so ordered; any issues not raised in a Rule 1925(b)
statement will be deemed waived; the courts lack the authority to
countenance deviations from the Rule's terms; the Rule's
provisions are not subject to ad hoc exceptions or selective
enforcement; appellants and their counsel are responsible for
complying with the Rule's requirements; Rule 1925 violations may
be raised by the appellate court sua sponte[.]

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011). Accordingly, we deem
Appellant’s third issue waived.

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J-A13011-18

evidence unless the appellant can show that the court's
determination was manifestly erroneous, arbitrary and capricious
or flagrantly contrary to the evidence.

Gutteridge v. J3 Energy Group, Inc., 165 A.3d 908, 914 (Pa. Super. 2017)

(internal citations and quotations omitted).

We have previously determined:

The RESDL, 68 Pa.C.S.A. § 7301 et seq., provides that “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 by completing all applicable items in a property disclosure
statement which satisfies the requirements of section 7304
(relating to disclosure form).” 68 Pa.C.S.A. § 7303. The RESDL
further provides, in pertinent part, “If information disclosed in
accordance with this chapter is subsequently rendered inaccurate
prior to final settlement as a result of any act, occurrence or
agreement subsequent to the delivery of the required disclosures,
the seller shall notify the buyer of the inaccuracy.” 68 Pa.C.S.A.
§ 7307.

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.A. § 7308. “A seller shall not be liable
for any error, inaccuracy or omission of any information delivered
pursuant to this chapter if: (1) the seller had no knowledge of the
error, inaccuracy or omission....” 68 Pa.C.S.A. § 7309(a)(1).

Growall v. Maietta, 931 A.2d 667, 672 (Pa. Super. 2007)(footnote omitted).

Regarding the UTPCPL, we have held:

the UTPCPL has the purpose of protecting the public from unfair
or deceptive business practices and provides for a private right of
action. The right to pursue an action is as follows:

Any person who purchases or leases goods or services
primarily for personal, family or household purposes

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J-A13011-18

and thereby suffers any ascertainable loss of money
or property, real or personal, as a result of the use or
employment by any person of a method, act or
practice declared unlawful by section 3 of this act,
may bring a private action to recover actual damages
or one hundred dollars ($100), whichever is greater.

73 P.S. § 201–9.2 (footnote omitted). The unlawful practices
noted above include the UTPCPL's “catchall” provision in 73 P.S.
§ 201–2(4)(xxi), [which] provides liability for fraudulent or
deceptive conduct which creates a likelihood of confusion or of
misunderstanding.

We note that deceptive conduct ordinarily can only take one of
two forms, either fraudulent or negligent. ... The pre-
1996 catchall provision covered only fraudulently deceptive
practices. The broadening of the UTPCPL ... makes negligent
deception, e.g., negligent misrepresentations, actionable under
the post-1996 catchall provision.

Kirwin v. Sussman Automotive, 149 A.3d 333, 336 (Pa. Super. 2016)

(original brackets and some citations and quotations omitted).

Here, the trial court determined that, prior to the sale to the Rands,

“[Appellant] was present for the August 30, 2011 inspection that exposed him

to a support column in the center of the basement that was not secured to

the floor.” Trial Court Opinion, 12/15/2017, at 5 (record citation omitted).

“The inspection report actually contain[ed] a photograph showing the

inspector pushing the unsecured column with his foot along the floor.” Id. at

5-6. Thus, the trial court determined that, “[s]ince [Appellant] was present

for the inspection and was provided the report showing movement in the

column, he knew of a past problem with a structural component but failed to

disclose it.” Id. at 6. Hence, the trial court determined that when Appellant

subsequently executed the disclosure statement, he was misleading when he

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J-A13011-18

stated that he was unaware of past structural problems with the home. Id.

at 7. Likewise, the trial court concluded that, “it was not reasonable for

[Appellant] to believe that [] Colella corrected the structural defect” when the

home inspection set forth that “Colella’s work appeared to be done by ‘an

unqualified person’ and was below local building standards[.]” Id. The trial

court also concluded that Appellant knew he had to obtain an occupancy

permit for a newly erected garage, but he failed to do so and then misled the

Rands about his knowledge of building code violations. Id. at 8.

We have reviewed the certified record, the parties’ briefs, the relevant

law, and the trial court’s opinion entered on December 15, 2017. In this case,

the trial court determined that Appellant knew there were structural problems

with the subject property and that occupancy permits were required but not

obtained. The trial court concluded that Appellant failed to disclose these

deficiencies to the Rands as required under both the RESDL and UTPCPL and

the Rands suffered subsequent damage. Moreover, the trial court recognized

that it was unreasonable for Appellant to believe that Colella corrected the

known structural problems, because Appellant knew Colella’s overall

construction skill fell below local building standards, well in advance of closing

with the Rands. Based upon our review of the record, we discern no abuse of

discretion or error of law. Because the December 15, 2017 opinion

meticulously, thoroughly, and accurately disposes of Appellant’s issues on

appeal, we affirm it and adopt it as our own. Accordingly, we direct the parties

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J-A13011-18

to include the trial court’s opinion in all future filings relating to our

examination of the merits of this appeal, as expressed herein.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/13/2018

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 Circulated 06/20/2018 01:59 PM

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,: PENNSYLVANIA.
CIVIL DIVISION

JORY AND MEANNA RAND,
Husband and Wife,

Plaintiff,
CASE NO. GD 13-7617
vs. Superior Court docket nos. 1375 WDA
2017, 1402 WDA 2017 and 1407 WDA
2Q17
BRIAN1 YOUNG, An adult individual,
and WIN REALTY ADVISORS, LLC, a OPINION
Pennsylvania limited liability company,
f/k/a Win Realty PA, LLC;
.JUDGE ALAN HERTZBERG
Defendants.

VS.

BARRISTERS LAND, ABSTRAT
CO., a P6trisylVania Close
Corporation and CAPITAL REGION
LAND' TRANSFER, INC., a Pennsylvania
Corporation d/b/a BARRRISTERS
LAND ABSTRACT'COMPANY,

Additional Defendants,

COPIES. SENT TO:

RYAN.JAMES, ESQUIRE -CHARLES C: BELL, ESQUIRE.
TAMES LAW, LLC DORNISH LAW .OFFICES, PC
.1514 LINCOLN WAN; Sill:TES 303.,302 1207 FIFTki AV,ROVE:;;Stirrt 300'
VviaTE,oAK, pA 15131 PrrtsBuRGN" 15219

DEBORAH R.,ERBSTEIN; ESQUIRE 'CLIFFORPTOTTLE, JR E$Quw
437 GRANT STREET Box24530
1806 .FRI-Ok BUILDING PiTts0ORGti,..TA :15234
PITISSURGH,,PA 15219
 CIVIL DIVISION

AND. 1.CiEANN RANO,
Husband and Wife,

Plaintiff,
CASEN0.13-7617
SixpetiOrtorl actapt,nps. 1375 WDA..
2017, :1402; WDA:2017 and 140.7..WDA
2017
BRIAN J. YOUNG, An adult individual,
and WIN REALTY ADVISORS, LLC,
Pennsylvania lunited liability company,
filqa Win Realty PA, LLC,

Defendants.

BARRISTERS LAND ABSTRACT
CO., A Pennsylvania apse
Corporation And CAPITAL REGION
LANDTRANSFER, INC., a Pennsylvania
Corporation d/b/a BARRRISTERS
LAND,ABSTRACI'COMPANY,
Additional Defendants.

OPINION

Alan Hertzberg; Judge Date Piled:December 15, V17

I., BaCkground

Aftettraduating from Boston C011ege and workingfin sales -for a sportswear

company,; defendant Brian Youngpurchased a home in Pittsburgh. Be 'had 'a contractor

:make some updates to :it and placed it, for sale with his mother, a' rot eState agent. It sold

quiddy, and Mr; YOung said it was a SticCesSful. project. He then 'decided to change

careers and becatne,a full time "real estate inveStor." ,Mr. Young's investments,, however,.

are exclusively .w.hat i coining* called "house 'flipping" in which. he will "buy cheap,

rehab and sell for: a:profit.:: ." Transcript of -Non -Jury -Trial ("T." hereafter),, p. 1.8. Mi.
 Young'fknext prOjectwas.the purehase of a: home inl)ortnont.,Borongh for .$0;000 that

. he 410 said'.wentwlI. He then purchased and .quickly sold tWo.mOre kornesirt .DOtmo4t.

All Three Dortiont .projectS. 'Wet& Eniñor retioVationt:. WrOlVig:tipdating .esthetics, with
.

Brandon Colella serving as the contractor in Charge Of the renovations.

As.Mr. Young was "flipping" the three homes in Dormont; he determined

he could' make a;larger'profit if he, wed. on. sales; commisSions:by becoming; a licensed

real, estate, agent. In :2009. Mr,. Young:took tkrequired c4),IIMS,. passed the: examination,

and in Mara. of 2010, became :a:licensed, real estate agent; Mr. Young:then turned'his

attention to' the Southside ofPittSburgh and purOhased a home on Fox. Way that "was a

gut job. tBrandon:Colellal gutted the. property and.rewiredit; replUrnbed it,. installed; new

drywall, new flOOrS; neW,kitehen, ItwaS more extensive: than the DOrmOnt properties."

p..615. It also sold 'quickly; and Mr. Young said there were. no complaints:

In theinli.of 2010 Mr.. young pi-an:sea athree 'story. home with a

detached garage on the Southside OrPitt.Sburgh known As 2,315 Jane Street., The hOrne

'Was built over. drielnindred yeatt ago,. and Mr. Young purchased it fdt $.152;000.,

.Brandon COlella.recorimiended that Mr. YOUng.,completelygut 2313 Imo Street; but Mr;

Yong instead decided' to save Money by Jirniting renoyaiionkto those that treated
:mor.g PAT:acti8reapPear44CP; $1.1PhFa AB: "open..COnCept":firg flOor,, In cictoher Of 2011 Mr..

'Young liStedIhe home for :Sale for over 4400,00'o With his broker, Win :Realty AdViSOrs.

This broker catered 'to agent/investors with a commission of 7()40, in fayor of the
agent: and agents Armitted t engage egelusively in IransaCtions:.invOlving: themselves as

pUrcluiSerOtiSeller. 23151ane,:hoW0et, did. not sell :eftadkly: at that hence Mr.

Young reduced, the: price.

2
outgrown the townhouse: they octupied.on the Southside. They were intetated in finding

another home, .on the Sotithside that was larger, had a garage 'and yard and needed

minimal renovations. They' found '2k5 Jane :Street had everythingthey were looking for

andpurchased it from Mr. Young _for $315;060 on Augusta), 2012.

On Doternber.24, 2012, during, a rain water poured .410: the :home from a

leak in the roof, Earlyhi January -the Rands had a cOntradtOr 11:Anted:Tennis Roofing

install, a new root :In creating the "open concept," a load,bearing that:ran:from the

frOrittO the rear Of the home wa$,Tptfloyed :and replaced: with:hunns..and beams:

Almost immediately after the 'roof teplactitterit the. Rands began to 'feel Nhat the house

Was changing; the floors' were, sinking" (T%, p.529) and they saw cracks, in the drywall

that covered the:Midapan support columnbn the firat'floor. it,:turned,ont the directive
:

from 'the' engineer who &SOW 'the eOlumhS, and beams' to '"assure tOntinuOuS load path.

to the fOoting in the basement! p. 354), was nbt followed. The Rands then. had 16

spend $70;126 to replace 'the systentof beams and edlumns Young had installed and

to repair !other 'Impacted components Of *the ,home.

In April of 2013 the Rands sued Mr. Wiling, Mr. COlella and Win Realty' in

September of 2014 Mr. Youngfiled. praetipe for a writ to join Barristers Land Abstract

Co., the settlement agent. that closed the real estate transaction, as an Additional

defendant, Prior totrial Mr: Colella reached a settlement with- the Rands,, and this Court

'excused him ficiinitither participation in the litigation. The .dispute: was assigried.to me

for disposition'vfa non-jury tridl,which was. held .on May '1, 2, asand 4; .2017. On. May -91s,

The Rands also sued Mr. Young's:parerts, who signed the -deed, but they were:disrdssed:frorn,the case
'before trial.
3
jointly by. Mr... Young and. *Win. Realty., .$11,921.45' owed by.BatrigterS.Land..ANtract and

:4:additional '$11,921.45 owed only ,by Mr.. Yottrigkr. violating the Unfair.

Trade Practices_ and Consumer protection' Law ("LITPCPL'.' hereafter). $eel3 ,§201-

I Cr seq.
The. Rands.;filed the. first lequeSting clarification. of the award

of. damages,. counsel_ fees iand eXperists !of S53;419.30. under the .UTPCPL and delay

damages under petioylvanialtilel.of Civil Procedure.no,238.. All the other parties. then

also 'filed Mcitioris; aileging. I cOmmitted amtl(OpliCity :a:errors in my. verdict. I

awarded the.. Rands 0Outisel fees and. expenses 6012;28654 and delay darnages.of

SM6.1,57...but denied all otherpost4rial motions judgment Was enteredand..appeals,
.

taken. to the Superior Court of Pennsylvania 'by ...Mr., Young, 'Win Realty 'and :Barristers..

'Each .filed a concise. gateitent ,OterfOrStoinplained Of on appeal,. See. Pennsylvania Rifle

of:Appellate. ProCeditre.-no,:1923, The balance Of addieSS.each error

;identified in, the.COndiSeStatements

IL .Esrors Claimed by Mr Young

In- paragraph 1 olMh Young's :COncise4tatenient, lic..COriterids itiy.'Non.4ary

Verdict and Verdict. Explanation.is .uncertain and ambiguous... Thelitstpartieg that
registered .a..problenyWith my verdiCt.and.explanation were, the .Rands in theirposNrial

mOtion xecitiegt.forl'Olarification": Of the, award. of *damages, Mr Young, 'Win..:Real.ty and
Barristers also then raised Misissut in their post-trial motions ***RAS Mr, Yotirig!s;

and,Barriaters?.concile.StatementS, The' Rands; alleged.a conflict *existed-between...the

Verdie(-aiiidtiritg Of $11,.9.21,45 against defendants. Young and Win :Realty ..and

against additional defendant Barristers because; my :explanation stated; that. these.

4
.amount"split equally between the remaining DefericlaritS and the Additional, Defendants."

Because. the: defendants: and additional .defendants ke comprised Of three. parties, the

Awls construed the "split equally' language to call for.diVision of the. $23;842..96

equally among each of the three parties.. However,, that was definitely not what.I

intended in the Verdia I determined 'Win Realty. was vicariously liableftir Mr. Young's

conduct,. hence Win Realty could only be jointly liable with, Mr, Young.. .0n August 1$,

2617 attempted to clarify that. the:explanation "was' intended to inform the partiesthat

the amount' of $23,842.90 was Split equally between. two groups,. the Defendants and the

.Additional Deferidarits, with each group ding being teSpOnSible for an equal amount .(the

Defendants are. responsible for $11;.9n445 and the Additional Defendants are responsible

.for $11,0U45)," Apparently,. this clarification is acceptable o. the Rands and Win

Realty but :not acceptable to Mr. Young and:Barristers. With several factors That made

the verdict complicated .(e:g:, behavior attributable to a Settling defendant and enhanced.

:damages. under the UTKPL applicable toonly one defendant)," hoped My "Verdict

Explanation" wOuld.astist the parties in understanding the verdict. I apologize if the.

parties. were not 'assisted,. but. am unaware of any authority for this. constituting reversible'

error.

In paragraph 2 of -Mr, Youngs concise statement, he contends I made !am errorl)y

finding Mr. Yeang76iled disclOse material defects because there was no. *evidence he

knew pr. Should have knOwn.of the defeett. Mt.. YOurig; hoWeyprz409X:theAM4sua1step

ahayMg a horite:inSpeqiort done 'before he. listed 23.15 jahe &rot for sale. Mr. yOtifig
Was: present for the August 30, 201.1 inspection that exposed m to' a support column in

the :center of the basement. that:was hot secured to the flOOr. T.,, pp. 1.1642Q,- The,
unsecured, column with his foot along the floor. Ste: Exhibit 29; p. 15. Older the

headings "Summary ofAreaS Requiring Further Evaluation": and 'General InfOrMatiOn,"

the .repOrt,alsO states:

Amateur WOric-It appears, that non professional -or an unqualified'
person or persons, attempted to perform repaitS.. Ti**Orlc.is not to
The typical bitilditig*andards: of the, area, Repairs Swill generally
be:more expensive becauSe of :the ninateur*Ork:

Mr. Young did not disclose this inspection report toithe Rands before they purchased

2515 Jane Street?, and lie' did not voluntarily provide it to then When they.reqUeStecl

during discovery proge4ing.,

P.ermsylVaitia'S. Real Est* Seller Disclosure. Law- required Mr. Young to. include.

"Strtiettiral problems" 08' P.S.§7304 (b)(0) in, the,Property Disclosure Statement
provided tO the Rands; but Mr. Yonne S: distloSure-staternent answered -"No7 .0 the

(ineStion, %re yg.i. aware of any pas( or present movement; ;shifting, deterioration, .or

.other problems ,with walls; :foundatiOns, or other structural components?' Exhibit 15; ¶

Since, Mr. Young *as VreaelitfOr -the inspection and: Was. provided :the report

shoving movement: in the column, he knew of a past problem with 6.Strudurar

corriptuierit but failed to 'disclose it. Hence, there was: evidence "Mr, Young knew ,Of the,

defeerand my determination that he tailed to: disclose it: was correct:

Mr. Young testified 'Brian COlella told him h::WOuld repairall the prof

itispedien:repOrt,:heno :Mr,. Young argueS he: is. not liable for- the: ornissiOnin -the

property diSclOStireStateMent.beCause theOrnisSionwaS based, on a reasonable 'belief

that a material defect- had been* corrected §73Q9 (a)(4 This provision

cannot be
-applicable to a eller's disclosure of a. past defect because it :monk! allow

6
provision applieSWhert. a seller:denies 4 defect currently exists because the teller

:reasonably-believe& it. Was corrected. Because Mr.YOurtg'S OrniSsioti concerned the

existence a,structural defect in'thel!ast, §73O9(a2'is not applicable.
Even if 68 PS. ::§7309(a)(2) were, applicable, it Was.ribt rea8Ohable for Mr. Young.

AO -believe Brian COlella corrected the stru_cturatdefect. The purchaser 'a the Fox Way

home testified that' mt. Young WasnOtirted that Brian Colella failed ;to inalserepaitS Mr.

YOung had assigned to him itithe,stimmer Of 2011., T., 0.,793-710,.

Young's home inspector saying Brian Ccilelles work appeared to be done by "an.

unqualified perSciii" and was baow local building stoodols;. it' is not reasonable to .eXpeCt

he could correct the 'structural defect. Therefore Mr. Young did not have a"reasonable

belief" that.Brian Colella corrected the structural defect.

.In paragraphs 3 and: 11 of Mr. 'Young's: concise 'statement, he contends I Made ari

&tot' by finding be violated VTifbCP.lid, The sale of residential property is 'subject tci

theUTPCPL *, Gabriel V. 011ata,368 Pa. Super, 183? 534A2d 488, (i977)), and

misleading Conduet ;by a, seller is violation of the "catchall provision" of the w:70

See 'Bennett v...A.T: Masterpiece Homes v. BroadSprings,.LliCi 2012:PA Super 60,40'

Aid 145 and 73.P.S. §2012(4)(Xxi), The statement in the written disclosure provided to

the Rands that Mr. 'Y,oung;:wa& unaware ofa past: Structural problem was misleading

conduct, In addition, a- City Building inspector WO-tined:Mr. Young he ;needed AO obtain

an occupancy permit because 'the old ,garage had been demolished and a;neW one erected

Without fire -rated dryWall,. See T, pp. 194-196 arid 205. Mr,`YOung,,however.,.failedto

obtain the ,occupancy permit, which resulted in the City issilinta.citAtieh to the Randsfik

viOlating:the Building -Code. The:propertydiselpsure statementrnislead Rands. about
7
'was unaware of viOlatiOnS:ollital 14*S:or btilditigfoidinanceS. Exhibit15
19(c) 40419(4 Since lvfp. Young mislead' the Rands about the:Strudintal problem and

the:lack Of. an OcCtipaney pet:mit fOt: th.e; new garage, my finding :that he, violated the

UTPCPL was. correct.

In paragraphs 4, 5, 6 and 8 Of Mr, Young's' COW* Statement.; he contends

erroneously found him !liable:for repaitS to items identified as defects' in the RandS' home

inspeCtiOti. There IS no merit to this' ..Qqntention because held Mr. Young liable,

exclusively for -repair casts' Mated to the StiliCtural.problern and other impacted

components of the 'home, such as the float :and drywall. Ifi the Verdiet.Explanation,

began,..my calculation:of damages with $70, 126.18, which is thetOtal .of the invoices

admitted into eVidenCethat Orate tp repair of the ,Structural problem and other impacted

components of the. Men, reducedthe, damages, by $40,283;28' for, sixty-six

.percent of the behavior attributable to the :settling, defendant? to $23;8490: The joint

'verdict againstUt.Y.owig and 'Win Realty, was for half ofthatatnOtint, $11;921.45, With:

another $11,921:45 againg:Ur, )(Olin alone for violating theVITCPL., -Since all'

'damages against Mr. Yodagitt.fitlii the cost of repairs' necessary to resolvethe

:sruCtural defects, he was; not foundliable for 'the repaieofdefectS.: identified. in :tie Rands'

'home inspection. 1[cAcc7 IOW not the ,error claimed'by Mr Young,

In paragraph 71of.Mt.. YounesicOnciseStatetifent, hecontends Lerroneously held

him liable for structural problems that Were not ViSibletO him prior to closing .and that Aid,

not, occur until after, the closing However,: Mr. Young was.preseritforlhe: inspection Of

2 intxhibits309 and 40, NYCEINCinvoiCes:for $2,000, $54,474; $5,78; $1,20Q, Roy
P.E: invoices for$700,.$600; $1,600 and $600 and Lumber J4.4191004 invoice fOri%3,574,18 for a total of
$70,126.18.
along .the ,floor of the basement support:column. See T.i,pp. 116-120, Hence; ;contrary to.

Mr. 'Young's contention, the..strtich.tral problem, was: visible to hitt, prior to clOsing,

Relative to Mr. YOung'S:Claitti-that::the StruOural.problems did not occur until after

:closing, the credible, Uncoritradieted .opinion tatty; Kiln, .Jr., RE, was AO milli*
deviations from his, design caused the structural problems. See T., pp. 327.334. Since

these. deviations occurred during the. renovation. overseen 'by. 'Brandon Colella, they did

not' occur' after the closing. Therethie,.1 did rug make.: the errors alleged by Mr; YOUng,

In Paragraph 9 of.Mt Young's :Concise stateitient heColitends I made ,an error

because a provision.in the Agreement:of Sale releases him from liability. This proVition,

paragraph no,p; states,;

Buyer releases, qtiit.claiinS:and fotever digcliargeSsELLER, ALL
BROKERS, their LICENSEES, EMPLOYEES and any OFFICER or
PARTNER ofany one ofitheruand any Other PERSON, FIRM .Or
CORPORATION,whtymay be liable by or through them,,frorn any and all
claims, losses or demands, including, but not limited to,, personal initiry-
and:propeity. damage and all of the COnSerftientegtherea .whetbeilcRov.v.P.
Or not, which may ,arise from the presence of termites or other woodboring
insects, radonljead'based paint hazards, mold, fungi Or indoor air quality,.
environmental hazards,, any defects in the individual otHotleVRge
disposal system or deficiencies in the on-site water service system, or any
defects or Conditions. on the Property, :Should Seller be Ifi defalilt Under
the terms of thiSAgreetrient:Ot in violation of any Seller disclosure law or
regulation, this release does not deprive Buyer of any right to Tonne any
remedies: that may be' available under laVoreqUity, ThikreleaSe will
survive:settlentem.

elearlyi the proVision does not release Mr. Young from liability ithe. violated any seller,

'disclosure law.. Since I...Young:did violate Pennsylvania's Real'Estate.Seller

Disclosure LaW, .1 correctly determined that he was not Teleased from liability,

In paragraph '10. of:Mr. 'Young's concise statement, he contends-I madeatt itor

because, the Rands waived their claims of defects:to:2.315 Jane. Street by signing condition
9
 e

These documents do contain waivers, but none purport to. waive unknown claims diii to

Mr. YOting,'S cOntealttient *Of defects.- Instead, they indicate, that the defects revealed:by

the Rands. home inspectidit haVe: been repaired or they' have waived their right toiliave

them repaired, and -with the release of eSerOWInOneyhoW the $1.5.;00Q4Crowed at

clOsing:with.Barristers due to. trirepaired defects WastO be diSbiiited: With the Rands not

haying waived tinknown Claims chteto Mr. Young's -concealment of defects', my-decision

Was correct.

In:paragraphIZ of Mr. Young's concise .statenient,*he contends I erroneously

..failed '"tO. determine whether :PlaintiffS had a fee agreement: With. counsel,- the amount of

Plaintiffs' responsibility -for paying:their fees,o4t-of-pocket, or:whether' there. was a

contingency recovery in total,t)t in part for their:attornert feeS:r This Contention, is

ipcmcql, The. thirty-eight pages- ofdetaile.d invOices provided to. Mr: Yung:-and .1 and

the Rands' tnOtion:fOr attorneye fees and costs contained the information I used to Make

the detertninatimisMi. YOUngallegesI did not make, These documents, established that

the Rands' would pay their counsel at the rate of $1.7.5pet hour, that the .Rands would,pay

their counsel no more -than' $3q,000: in attorney fees and. expenses (the inVoites

dernOnStrate.reeeiptiby counsel, of 00;009 -from the. Rands), and that the amount over

$30,000 k$53,41930 was requested themotionywould be dpVitjgOt award from

the court. Since I did determine the- Rands!. fee agreement with their eouttsel,'thefeWaS

nO. eh-60441y attorney fee award,

In paragraph 13- of Mr.. Young's' etintiSe :statement, he contends I erroneously

failed "to direct PlaintiffS to: file of record invoices setting forth their COUrisel'S

plaeSsiOttals ServiceS and time:spent for each service performed, and -the costs 'claimed,
appellateireview.7 This contention is. disingenuous because :the itivoiteS. would have been,

offered into evidenteif I helcian..evideritiary hearing.. I provided Mr. Young with the

opportunity for eAdentialy:hearing, but he declined ;to have 'an evidentiary hearing,

See 6123/17 Order of.Court rail of :counsel havingagreed during_ a telephone conference'

call held yesterday that there will be no. evidentiary hearing on Plaintiffs' Motion for

Attorneys fees and 'The fact that the thirty-eight pages' of. counsel's invoices

were provided to Mr. Young and I but were not:either offered into eVidenCe. at 'a hearing

or attached to the Rands' .11totionlad no. effect on the ability .of Mr, YOung and,I'to

review :them, Hence,:there Is no prejudice to Mr. Young and no ihipaCt on. "review by the

trial 'Court??' RelatiVe, to Mr. Yoting'Surgurnent:that the! record .is incOinplete for

appellate reviewia.docurnerit With cotinsel.'S'. Wirt and -hourly rate submitted at the end of

-tri4 withcounseks ;assertion that the hourly fate Wasfair and. reasonable was; held by, die

Siipeiior Count Of;P:enrisylvaniatdbe:sufficientinforinatiOnfOr the trial court's

deterthination of an attorney fee award .under the:U7CPL, See Wallace 'v. Pastore, 1999.

PA Super -297,, 742: A2c1.1090 it: .1094. Siitee. I posagssed more information, than the trial

judge:in Wallace V. PaStore4 I was edited it:110t*114ifiii0 the Rands to filç ereOrd their

attorney's invoices.

Mr. 'Young's final' cantention,, set 1o.rtlj'Ii, paragaph 14 of his concise statement,

i*$ tat erroneously failed -to consider the faCtOrt for attesSing:the reasonableness of

Plai'ntiff's COurisel feet settOrth in Boehm v. Riversource Life Ins. 'Co. (201.5..PA5uper.

1204.117 A.3d 308). The. factors are:

(1) The, time' and 'labor required, the novelty and difficulty of the questions
involved .and the skill requisite properly to .conduct the 'case; (2) The
customary charges of the members*, of the bar for isimilar services; ,(3)
11
 the clients, from the services; and (4Thb contingency or certainty of
the ,compensation.

Id. at 335, Mr. Young, once again,, makes an inceirtediconrentjon because 1,. in fact

considered these four factors. In assessing the $12,286.54 counsel fee :award. I

determined attorney James spent more time than another: attorney'with more experience

would have spent and allowed only 6.5 of the 276 hours he devoted to the dispute in 2013

and 2014., :Mbst of the time I: credited to dttOrney James thereafter involved his
:

Attotistice, at witness and party depositions. and :preparation:for thelerigthy trial, which

:either. was 'within his control or was reasonable. Attorney James charged ,$175 per.

,hour,, a:rate Mr; Young did :not complain abtiOt; AO' that, I *Wm is PliStornary for

similar services. I considered :the, appriVirriately $109;090 the Rands spent repairing

2315 Jane Street :4N that attorney lames' representation was:suCcessful hi producing

$50,000:settlemerititbrn BraridOnColeila plus :a verdict of $35;764. In doing.w, I

awarded:a smaller percentage of the, counsel fees credited 'to: attorney Jagres, before the

cole114,settletrent,17 percent (based ion deferidatitOliati the 50 perceM :I awarded

afterwards. 1,00**i-that payment for' attorney' James' services from :Septertibet of
2015 to .the"May.; 2017 frig Was .aintingent ;On my award and ncit :yet paid; but I still

.eliminated 25 of the' 111 haurs'he spent dirririttliattirne period because ,they were. not

necessaty. 'Having considered the appropriate factors and awarding attorney

percent of the fees and expenses he T.p u , ply ,connsa fee .awar4 was. reasonable and

not erroneous.

3 itilaot; neit.:tho.endlof..h4r; Young's answer top1ainOrs:rnifon.f.0". pust,trint.tatief; Young seems to
fodieate.t$:.per hour is.lowar.thalf tiwcustomiryofiggos,-4yertitig.iltha(if4kit.f*it:tfie.lackof
everfeuce.91Plaintiffeinorneyln- hanOinoivitjipiptiotivattOS.
12
 Errors claimed. byWin Realty

In paragraph '1 of Wiii.ltealts CARCisp :statement; it contends' made an :ersOr._ b,y

:holdingit vicariously liable for the misleading propertydisciosure statement:pieparedby

Mr. YOung, Win ;Realty admits that, a. broker is' vicariously liable f4i- the misleading

conduct of its agent COmMitted in the,course.of his or :heterriPlayment. See Aiello v. Ed

Sajce, Real Estate; Ric., 50813a..M, 499 c1:20 (1985). But, Win 'Realty argues:that--

preparation of the property disclosureStaternent was done by Mr.-Youngin his capacity

as 'the, seller, not 'as a..rcal estate Agent; therefore the4nitleading conduct was not

committed in the cotirse: of his employment. However; Pennsylvania's. Real Estate Seller

tkisCloSuretaw plaiily establishes that a j:01 estate agent:is:liable when,Ife or she know

theproperty :cliselosure,statement prepatedby the: Seller is misleading, '"68' Pa. C.S.
7308 and 7310: While Mr. YOnigactedin the' capacity of seller,and gat estate: agent;

it would be impossible for his. knowledgea,s. a real estate agent' tO be, differentfrom his

knOwledge as: the seller; Since, real estate: agent Young knew :the property diSclostire,

statediehtv4s miSleadingi I correetty found broker -Wit Realty vicariously liable.

In paragraph 2, Of Win Realty's concise' statement, it :Contends I made an error by

finding it vicariously liablefOr. Mr; YOung"sn_egligent remodeling activities.

allten1041trA0.ctivity was performed under the 'cliicApn of Brandon C.01014 antl

found Win Realty was vicariously liable based on Mr. YOung's knowledge that the

property disclosure Statentent was misleading!, there is no merit tO: this allegation

Of error..

fparagrapliSI,, :$; 9 and 10' of Win Realty.':.g :Ctin6isp statement; t makes.

the same contentions that Ipreviously,-addreSSed under; tile effort:claimed by Mr. )(eking.

13
 In paragraph.i of Barrister's'concis'e: stateffidnt, it Contends my verdict was erroneous

because there was. no ey,idence thatit owed a duty to Mr. Young or that it was negligent..

While the AgreerrientolSale between Mr. Young and the 'Rands431ates:the obligation. on

Mr. Voting to obtain: an occupancy permit and./Or zoning certificate, this obligation

tOritirielris aSsUmed, by Barristers and its cOrripetitor title companies as part .of the

services title Companies .are paid to perfOrm.WheriSerVing as; Settlernern agents in. charge

of closing, a real estaintrarisactiOri.4 See 6112.07 and 654-655; :this

ObligatiOn, Barristers had a ditty .to Mr. Young tO, us reaSonable care. See Pearson v.

Central Nat. Bank Of Philadelphia, 102 Pa. Super .111, 15.6 A. 560 (191) (tickling

settlement "agent liable: to -purchaser, who did not purchase title iriStitarice, fOr delinquent
:

water rents). The evidence OfBarriatere negligence essentially was:by admission of its

vice president and, general manager that it Should :tia\re, but failed` to notify Mr; Young or

:the *Rands; When the: zoning certificate. provided to it by the. City of Pittsburgh stated that

116 occupancy permit had been issued and the proposed Sne: T:, pp..

680. Since there was Undisputed eVidericn ea duty owed by Barristers' to Mr, Young
and Battiptere negligence, my'verdictagainst Banisters Was :correct,

In :paragraph otparristere concise statement; it:COntendS I erroneously
:imposed a..contractual duty when .it was not a party to the Property Disclosure, Statement.

'Ortlie Agreement of Sale: FletweVnt,SarriSters admitted that it:agreed:to obtain the

.,.lien
occupancy permit and.zoning certification. Hence,,Barrikeit :had atontraOtuat duty,

4 the,110-1.-.Se41qme.rit $.1416410.1.; from.the
. .
'002' closing shows' Barristers charging $2,215totitie
..

p:epAtetiOn and $15 for notary
.
deedinsurance,:$135:fcr

.._
fees being reimbursed $20Z701:0 r letters,
_ .

Which included:$1430.13etriStOst0000..to:the City ofPittsburgh for the zoning certificate.
.14.
;liability wider the. terms and conditions: of. the- Property: DiSCIOSure Statement and !the

Agreement of Sale,: :tiOweVer, thereisno statement in either :dottinent that releaSeS the

settlement agent from negligent: donduaor breachingits' agreementto prOvide :settlement

-services. Therefore, 'Barristers -was riotreleaSed Iran liability..

In paragraph 2,c, ofBarristere concise statement,, it Contends "no evidence; Was

preSentednt trial:that-garristera was: required to obtain occdpanCy permit?' TO the

contrary; there Was tindOntradieted evidenCe presented at trial that Barristers Wassaluire4

tQ obtain an occupancy. permit.

Jnparagraph 2.d, -of 'Barristers' :conCise statement it contends there was no

eVidente;that the lack Of an occupancy permit adversely affected the 'title to the property.

While,this is true, liability, was nOt. prChtis'ed on Barristers, title insurance responsibility'.

Inatead, BaFdsters, liability was,premisecl on perfOrmanee ofits. Settlement agent,duties.

.In paragraph of*Barristers' Concise, statement; it contends there was no

evidence that lack Ofan pc;gnpancy permit resulted' in any damage:to:Mr: Young ot the

'Rands. To'the contrary, the Rands.credibly.teStifiecl that they closed on

the purchase of 2315 Jane .Street if Barristers!had.inforrified them there was' no occupancy

permit and their proposed -use Hence, the..damage§!shatainetitag result of the

purchase of the. property -would tavebeen !avoided had:parristers done its' job properly.

These 'damages Include not only the $10.,126.18 the. Rands went to repair the structural.

problem, but:the additiOnal amount they spent to remove ;the dryWall in the garue an0

replace it. with :fire; rated: drywall. after being cited for violating the 'City Code.

l'The gandsiatcttgr,tbj$ wetkinihi,t#age:but were unable -to, locate an inveice:tha( egg of
material 00410010 Pe garage;.
15
.alleged itiOnSittericy iii. the: VerdiCt and "Verdt Expatiation that 'I previously -addressed

under the 'errors' 'claimed by Mr. YOUrig.

In paragraph 4.of Barristers' concise. Statement, contend S I erroneously

calcUlated'datnageS by failing "to deduct set-off&frorn. the gross: arnOttrit claimed by the

Plaintiffs;' The only argument fOr cletlucting.:Set7OffS that was not, addressed under the

errors claimed by Mr, Young is that rent reeeiVedand.the higher sale rice 'obtained when

the R4441.610040 tqCalifornia should have been deducted from the calculation Of

damages. HOWeVer, it' would be improper to deduct eithetof these items for at' least two

reasons, first; receiving Tent and'apprediation in 'the value, of real estate over time

typicallyAccrue to any,putchase-rorrdalty, and the Rand hopw:f0r these benefits before

they purchased the home. Second, if they could be deducted from the damages,

'numerous collateral iSstte$,WOUld have become :relevant fe.g,1 any offsetting cost of rent

'the Rands paid when they relOCated, Whether tentrebeived -WAS offset,bythe mortgage

paymentand other, expenses and whether the: cost: of any neW home. purChaSed by The

,Rands, weeded the Sale price obtained; for 231$ Jane Street). Therefore, not:dedtiCtihg

the rent received' and :4ghet sate price obtained. w.as .appopriate.and not' erroneous

Barristers" final CortientiOn, setItitthiti paragraph .5 :of 'its ,Coucise:staternent, is

that any. verdict was pr;TOneous 'because, the title insurance ptiiicy otCludes clairnsTelating

to zoning and: occupancy permits; Since ,Bar lgers' liability was' not premised .on the title

insurance policy; my verdict was correct.

16