Wattamwar, P. v. Fox & Roach LP

J-S46034-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37

PARITOSH WATTAMWAR AND : IN THE SUPERIOR COURT OF
RANJANA SINGH-WATTAMWAR, H/W_ : PENNSYLVANIA
Appellants
Vv.

FOX & ROACH LP D/B/A BERKSHIRE

HATHAWAY HOMESERVICES, FOX

AND ROACH, REALTORS, AND

BERKSHIRE HATHAWAY HOME

SERVICES FOX AND ROACH, :

REALTORS AND LASZLO GARAY : No. 3112 EDA 2019

Appeal from the Order Entered September 25, 2019
in the Court of Common Pleas of Chester County
Civil Division at No(s): No. 17-8905

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 12, 2021
Paritosh Wattamwar and Ranjana Singh-Wattamwar, husband and wife
(collectively, “the Wattamwars”), appeal from the entry of summary judgment
against them, and in favor of Fox & Roach LP d/b/a Berkshire Hathaway
Homeservices, Fox and Roach, Realtors, and Berkshire Hathaway Home
Services Fox and Roach, Realtors (collectively, “Fox & Roach”), and Laszlo
Garay (“Garay”) (collectively, “‘Defendants”). We affirm.
In its Order entered on September 25, 2019, the trial court set forth the

factual history underlying this appeal as follows:
J-S46034-20

These consolidated actions!'! arise out of the sale and
purchase of real property in “Pickering Crossing,” a residential
community comprised of newly constructed carriage and twin
homes. Pickering Crossing is located near the intersections of
State Route 29 and Charlestown Road in Charlestown Township,
Chester County. It sits directly adjacent to a pre-existing asphalt
plant operated by a construction company known as Allen Myers.

Each of the Plaintiffs ... purchased a new carriage home in
[] Pickering Crossing. Defendants Fox & Roach and [] Garay were
the listing broker and agent, respectively, for Southdown Homes,
the owner and developer of Pickering Crossing.

Plaintiffs allege that, prior to purchasing their homes, they
each inquired with [] Garay about the noise generated by trucks
and equipment operating on the asphalt plant adjacent to
Pickering Crossing. According to Plaintiffs, Garay advised each of
them that the plant would close within two years; they also assert
that Garay failed to inform them that the plant operated on a 24-
hour basis.

Plaintiffs entered into agreements of sale and made
settlement on the properties in 2015, and 2016. After moving in,
they learned that the asphalt plant would remain open indefinitely
and that it operated on a 24-hour basis. Plaintiffs characterize the
noise generated by the plant as “extreme,” “substantial,” and
“continuous,” and claim that it reduces the value of their
respective properties.

On September 15, 2017, Plaintiffs, as homeowners, filed
[Cjomplaints against, inter alia, Garay and Fox & Roach alleging
claims for intentional fraud and violations of Pennsylvania’s Unfair
Trade Practices and Consumer Protection Law (“UTPCPL”).!2]
Plaintiffs averred that, at the time they each inquired of Garay
about the noise at the asphalt plant, [they each] knew that the

1 Previously, the Wattamwars' action was consolidated with actions filed by
Mary E. Rush, Jose and Julie Robertson, husband and wife (“the Robertsons”),
and Mary Kathleen Makowka (collectively, “Plaintiffs”). The cases were
deconsolidated prior to the instant appeal.

2 See 73 P.S. §§ 201-1 to 201-9.3.
J-S46034-20

plant would not close within two years[,] and that it operated on
a 24-hour basis. Plaintiffs assert that Garay misrepresented this
information to them in order to induce them to purchase a home
in Pickering Crossing.

Garay and Fox & Roach ... moved for summary judgment
against [Plaintiffs] on July 11, 2019 ....

Trial Court Opinion, 9/25/19, at 2-3 n.1 (footnotes added).

In its December 30, 2019, Opinion, the trial court set forth the
procedural history of the underlying proceedings, which we adopt for the
purpose of this appeal. See Trial Court Opinion, 12/30/19, at 2-7.

The trial court entered summary judgment in favor of Defendants and
against the Plaintiffs, including the Wattamwars, on September 25, 2019.
Thereafter, the Wattamwars filed the instant timely appeal, followed by a
court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of
on appeal.

The Wattamwars present the following claims for our review:

[1.] Whether the [trial court’s] granting of summary judgment

was an error of law and/or an abuse of discretion because[,] even

if the opinion of the appraiser[,] Donald Garfinkel [(“Garfinkel”), ]

on diminished value was disallowed[, the Wattamwars] would still

be entitled to a verdict for nominal damages[,] as set forth in

Sands v. Forrest, ... 434 [A.2d] 122, 124 ([Pa. Super.] 1981)[,]

as well as punitive damages and attorneys’ fees under the

[UTPCPL]?

[2.] Whether the [trial court’s] granting of summary judgment

was an error of law and/or an abuse of discretion because[,] even

if the opinion of the appraiser[, Garfinkel,] on diminished value

was disallowed[, the Wattamwars,] as the owners of the real

property, were competent to testify at trial as to their opinion of

the value of the real property[,] and compare that value to what
was paid for the real property?

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J-S46034-20

[3.] Whether the [trial court’s] granting of summary judgment

was an error of law and/or an abuse of discretion as the opinion

on diminished value of [] Garfinkel should be considered by the

jury[,] given that [the Wattamwars] were told that the plant would

close within two years, it was not until they learned [that] the

plant was not closing that they [became] aware of their

damages[,] and the true measure of damages should be what they

were at the time of the appraisal[,] not at the time of settlement, |

because if the real property had diminished value at the time of

settlement but increased substantially by the time of trial[,] it
could not be said that [the Wattamwars] were damaged at trial

and the measure of damages should be as of the date of trial?

Brief for Appellants at 6-7 (citation and some capitalization omitted).

We will address the Wattamwars’ first two claims together, as the trial
court did so in its Opinion. The Wattamwars first claim that the trial court
improperly entered summary judgment against them because, even if the
opinion of their appraiser was disallowed, they would still be entitled to
nominal damages, as well as punitive damages, costs, and attorneys’ fees,
under the UTPCPL. Brief for Appellants at 16. The Wattamwars asserts that
they did not waive this issue, as they had requested the following damages in
their Complaint:

a. [E]xtreme and substantial interference with the use and
enjoyment of their real property;

b. Extreme and substantial loss in the value of their property.
Id. According to The Wattamwars, they averred “punitive damages, costs,
damages in excess of $50,000.00 and attorneys’ fees under violations of the
UTPCPL[,] and punitive damages, costs and damages in excess of $50,000.00

for [fjraud.” Id. at 17. The Wattamwars direct our attention to their Answer
J-S46034-20

to Defendants’ Motion for summary judgment, wherein they “argued [that]
summary judgment was improper because they had ‘established damages.’”
Id.

The Wattamwars rely upon the appraisal of Garfinkel, who opined that
the diminution of value of the property, based upon the noise generated from
the asphalt plant, “amounts to $130,000.00.” Id. The Wattamwars assert
that, in their Answer to the Motion, they cited the case of Sivlerman v. Bell
Sav. & Loan Ass’n, 533 A.2d 110, 116 (Pa. Super. 1987), and now argue
that the diminution in value of $130,000.00 is obviously a “pecuniary loss”
authorized as damages under Silverman. Brief for Appellants at 17-18.

The Wattamwars also argue that they are entitled to nominal damages.
Id. at 18-19. Quoting Sands, The Wattamwars contend that the failure to
prove damages is not determinative of the issue of an alleged liability for fraud
and deceit: “If plaintiffs were entitled to a verdict on the cause of action
alleged, but were unable to prove damages, they were nevertheless entitled
to a verdict for nominal damages.” Id. at 19 (quoting Sands, 434 A.2d at
124). The Wattamwars posit that they were not required to use “magic
words,” or specifically plead “nominal damages,” nor were they required to
request an amendment to do so in response to Defendants’ Motion for
summary judgment. Id. at 19. Pursuant to Sands, the Wattamwars argue,
when the Garfinkel Appraisal was disallowed, they were still entitled to a jury

trial on nominal damages. Id.
J-S46034-20

In their second claim, the Wattamwars argue that even if the opinion of
their expert appraiser on the issue of diminished value was disallowed, they
could testify regarding the value of the property, as its owners. Brief for
Appellants at 20. The Wattamwars dispute the trial court’s assessment that
they were not qualified to give this valuation testimony, based upon their lack
of personal knowledge of that value at the time of the transaction. Id. at 21.
The Wattamwars argue that during their time owning the property, “they
became intimately familiar with their property, especially with the noise from
the adjacent plant coming into the house 24 hours a day.” Id.

The Wattamwars further posit that, to establish damages for fraud, they
were not required to establish the property’s value as of the date of the
transaction. Id. at 22. Rather, the Wattamwars claim a “pecuniary loss” as
a consequence of their reliance upon the Defendants’ misrepresentations. Id.
According to the Wattamwars, “[t]his is clearly a pecuniary loss suffered
otherwise[,] as a consequence of the recipient’s reliance upon the
misrepresentation,” as is set forth in the Restatement (Second) of Torts § 549.
Brief for Appellants at 22. The Wattamwars argue that, if they testify
regarding their belief as to the value of the property, and if that amount is
less than what they had paid, and if they attribute the loss to the noise from
the adjacent plant, they have established a pecuniary loss through competent

evidence. Id. at 22-23.
J-S46034-20

Regarding their UTPCPL claim, the Wattamwars assert that they can
establish an “ascertainable loss” through the testimony of their expert
appraiser, Garfinkel. Id, at 23. The Wattamwars assert that Garfinkel opined
that the diminution of the value of the property, based upon the excessive
noise, is $130,000.00. Id. This evidence, the Wattamwars argue, coupled
with their own testimony, constitutes competent evidence of ascertainable
losses and actual damages. Id.

Our standard of review of an appeal from an order granting summary
judgment is well settled:

Summary judgment may be granted only in the clearest of cases

where the record shows that there are no genuine issues of

material fact and also demonstrates that the moving party is

entitled to judgment as a matter of law. Whether there is a

genuine issue of material fact is a question of law, and therefore[, |

our standard of review is de novo and our scope of review is

plenary. When reviewing a grant of summary judgment, we must
examine the record in a light most favorable to the non-moving

party.
Reason v. Kathryn's Korner Thrift Shop, 169 A.3d 96, 100 (Pa. Super.
2017) (internal citation omitted).

The entry of summary judgment is governed by Pa.R.C.P. 1035.2, which
provides as follows:

After the relevant pleadings are closed, but within such time as

not to unreasonably delay trial, any party may move for summary

judgment in whole or in part as a matter of law

(1) whenever there is no genuine issue of any material fact as to

a necessary element of the cause of action or defense which could
be established by additional discovery or expert report, or
J-S46034-20

(2) if, after the completion of discovery relevant to the motion,

including the production of expert reports, an adverse party who

will bear the burden of proof at trial has failed to produce evidence

of facts essential to the cause of action or defense which in a jury

trial would require the issues to be submitted to a jury.
Pa.R.C.P. 1035.2. Pennsylvania Rule of Civil Procedure 1035.3 provides, in
relevant part, that

the adverse party may not rest upon the mere allegations or

denials of the pleadings but must file a response within thirty days

after service of the motion identifying

(1) one or more issues of fact arising from evidence in the record

controverting the evidence cited in support of the motion or from

a challenge to the credibility of one or more witnesses testifying

in support of the motion, or

(2) evidence in the record establishing the facts essential to the

cause of action or defense which the motion cites as not having

been produced.
Pa.R.C.P. 1035.3(a)(1)-(2), see also Harber Philadelphia Center City
Office Ltd. v. LPCI Ltd. Partnership, 764 A.2d 1100, 1105 (Pa. Super.
2000) (stating that, “[b]ecause, under [Pa.R.C.P.] 1035.3, the non-moving
party must respond to a motion for summary judgment, he or she bears the
same responsibility as in any proceeding, to raise all defenses or grounds for
relief at the first opportunity.”).

In its Opinion, the trial court addressed the Wattamwars’ first two claims
together, and concluded that they are waived, and additionally lack merit.
See Trial Opinion, 12/30/19, at 8-12. We agree with the sound reasoning of

the trial court, as set forth in its Opinion, and affirm on this basis with regard

to the Wattamwars’ first two claims, see id., with the following addendum.

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J-S46034-20

The Wattamwars’ reliance on this Court’s holding in Sands is misplaced.
In Sands, the appellants purchased a “farm property” in Berks County for
$85,000. Sands, 434 A.2d at 123. The purchase allocated a purchase price
of $60,000.00 for the real property, and $25,000.00 for certain personalty.
Id. However, after appellants took possession of the property, they found the
property in need of repair, and certain items of personalty missing. Id. The
appellants filed an action for fraudulent misrepresentation, claiming damages
in the amount of $40,000.00. Id. At trial, when the appellants sought to
introduce the cost of repairs and replacement of the missing items, appellees
objected, claiming that such items are not a proper measure of damages. Id.
at 24. The trial court sustained the objection. Id. However, appellants then
moved to amend their complaint, and offered to produce evidence regarding
the value of the property at the time they took possession. Id. The trial court
denied the motion. Id.

On appeal, this Court recognized that the trial court correctly
determined the proper measure of damages, but erred when it directed a
verdict in appellees’ favor. Id. This Court stated that, “[i]f [appellants] were
entitled to a verdict on the cause of action alleged, but were unable to prove
damages, they were nevertheless entitled to a verdict for nominal damages.”
Id. This Court further concluded that the appellants should have been
permitted to amend their complaint to allege a correct measure of damages.

Id.
J-S46034-20

This case, by contrast, is ina markedly different procedural posture than
that presented in Sands. Here, the Defendants filed a Motion for summary
judgment, wherein they claimed that the Wattamwars had failed to present
the evidence of damages necessary to sustain their causes of action. See
Trial Court Order, 9/25/19, at 2 n.1 (Summarizing Defendants’ contention that
all of the Plaintiffs had failed to produce evidence of damages, because the
record does not disclose the market values of their homes on the dates of
purchase). The Wattamwars failed to assert their present claims in opposing
the Motion for summary judgment. Further, The Wattamwars never moved
to amend their Complaint. Thus, this case is distinguishable from Sands.
Thus, the trial court properly deemed these claims waived. See Krentz v.
Consol. Rail Corp., 910 A.2d 20, 37 (Pa. 2006) (citation omitted) (stating
that “arguments not raised initially before the trial court in opposition to
summary judgment cannot be raised for the first time on appeal.”) (citation
omitted); accord, Wells Fargo Bank N.A. v. Taggart, 221 A.3d 233 n.3
(Pa. Super. 2019). The record supports the trial court’s determination, and
we discern no error in this regard. Consequently, we cannot grant the
Wattamwars relief on their first two claims.

In their third claim, the Wattamwars argue that the trial court
improperly entered summary judgment, because they only ascertained their

damages upon learning that the asphalt plant would not be closing. Brief for

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Appellant at 24. The Wattamwars assert that the true measure of their
damages should be based upon

what they were at the time of the appraisal [and] not at the time

of settlement[,] because if the real property had a diminished

value at the time of settlement[,] but increased substantially by

the time of trial[,] it could not be said that [they] were damaged

at trial[,] and the measure of damages should be as of the date

of trial.

Id. at 24. The Wattamwars contend that their expert’s opinion is therefore
competent to establish their damages. Id.

The Wattamwars also argue that they may recover for fraud if they
suffered a “pecuniary loss suffered otherwise as a consequence of the
recipient’s reliance upon the misrepresentation.” Id, at 25 (quoting
Restatement (Second) of Torts § 549) (emphasis omitted). Once again, the
Wattamwars argue that their expert’s valuation is competent to establish such
a “pecuniary loss suffered otherwise.” Id. Similarly, the Wattamwars argue
that the damages for fraud should be measured as of the date of trial, because
they were not aware of their damages until they had learned of the plant’s
non-closure. Id.

In their brief, the Wattamwars again argue that their own opinion as to
the value of the property, as well as their expert’s opinion of damages,
constituted competent evidence of ascertainable loss and actual damages

under the UTPCPL. Id. at 26. According to the Wattamwars, “[a]scertainable

loss is not synonymous with the difference between the value of the property

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on the day of the transaction and its purchase price or other value given for
it.” Id.

In its Opinion, the trial court addressed this claim, and concluded that
it is waived, based upon the Wattamwars’ failure to raise it in their Response
to Defendants’ Motion for summary judgment. See Trial Court Opinion,
12/30/19, at 15-16. We agree with the sound reasoning of the trial court, as
set forth in its Opinion, and affirm on this basis with regard to the Wattamwars’
third claim. See id.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Es¢
Prothonotary

Date: 1/12/2021

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Circulated 12/10/2020 11:26 AM

Fil¢gd/ and=Attested
PROTHONOTARY
30 Wee Zorg 62: 51
JF \ Mad Ler
PARITOSH WATTAMWAR and : COURT OF COMMON PLEASE OF
RANJANA SINGH-WATTAMWAR, h/w : CHESTER COUNTY, PENNSYLVANIA
VS. Plaintiffs, : CIVIL ACTION —- LAW
FOX & ROACH LP d/b/a BERKSHIRE : NO. 2017-08905-TT
HATHAWAY HOMESERIVICES FOX — :
AND ROACH, REALTORS®, and : Appeal at Superior Court Docket Nos.
BERKSHIRE HATHAWAY : 3112 EDA 2019 and 3109 EDA 2019
HOMESERVICES FOX AND ROACH, - :
REALTORS®, and LASZLO
GARAY
Defendants.
KATHLEEN MAKOWKA : COURT OF COMMON PLEASE OF
: CHESTER COUNTY, PENNSYLVANIA
Plaintiff, :
VS. : ° CIVIL ACTION —- LAW
FOX & ROACH LP d/b/a BERKSHIRE : NO. 2017-08907-TT
HATHAWAY HOMESERIVICES FOX &
ROACH, REALTORS®, and : Appeal at Superior Court Docket Nos.
BERKSHIRE HATHAWAY : 3111 EDA 2019 and 3110 EDA 2019

HOMESERVICES FOX AND ROACH,
REALTORS®, and LASZLO
GARAY

Defendants.

OPINION PURSUANT TO Pa. R.A.P. 1925(a)
Paritosh Wattamwar and Ranjana Singh-Wattamwar (Plaintiffs in case number 2017-
08905) and Kathleen Makowka (Plaintiff in case number 2017-08907) separately appeal from

the Court’s September 25, 2019 order granting Defendants’ motions for summary judgment!

' Defendants filed separate motions for summary judgment against the Wattamwar Plaintiffs and Plaintiff
Makowka on July 11, 2019. On September 25, 2019, the Court granted Defendants’ motions in a consolidated

order which was entered on the docket in Wattamwar action and the Makowka action.
2017-08905-TT

by
PM

and entering judgment in favor of Defendants and against Plaintiffs. The Court submits this
consolidated Opinion pursuant to Pa. R.A.P. 1925(a).”
Procedural History/Duplicative Appeals

Prior to addressing the merits of Plaintiffs’ 1925(b) statements the Court summarizes
the complicated procedural history of these cases and recommends dismissal as duplicative of
the appeals docketed in the Superior Court at Nos. 3109 EDA 2019 (in the Wattamwar action)
and 3110 EDA 2019 (in the Makowka action).

Plaintiffs initiated the above-entitled actions on September 15, 2017, by filing
complaints against Defendants.’ Plaintiffs’ actions are two of four cases filed on the same day
raising identical claims against identical Defendants. These cases are as follows:

« Mary E. Rush vs. Above-Entitled Defendants (docketed at 2017-08904)

=» The Wattamwar Plaintiffs vs. Above-Entitled Defendants (docketed at 2017-08905)
= Jose and Julie Robertson vs. Above-Entitled Defendants (docketed at 2017-08906)

« Plaintiff Makowka vs. Above-Entitled Defendants (docketed at 2017-08907)

The plaintiffs in all four cases asserted claims against Defendants for “Fraud” and
“Violations of the Unfair Trade Practices Act and Consumer Protection Law” arising out of the
plaintiffs’ purchases of newly construed homes in a residential community known as

“Pickering Crossing.” The underlying factual basis for the plaintiffs’ claims in each case are

* In their Pa. R.A.P. 1925(b) statements the Wattamwar Plaintiffs and Plaintiff Makowka raise identical errors
complained of on appeal. Consequently, for ease of disposition, the Court addresses Plaintiffs’ errors in a
consolidated 1925(a) opinion.

> Plaintiffs identified three Defendants in each complaint: (i) Fox & Roach LP d/b/a Berkshire Hathaway
HomeServices Fox and Roach, Realtors®; (ii) Berkshire Hathaway HomeServices Fox and Roach, Realtors®; and
(iii) Laszlo Garay. It appears that, based on the matter in which these actions were litigated, the first two
Defendants are one in the same.

2017-08905-TT

virtually identical and is set forth more fully in the footnote appended to the Court’s September
25, 2019 order.

On May 7, 2018, the Court entered an order consolidating “for all purposes” the four
related actions pursuant to Pa. R.C.P. 21 3(a).* The order did not specify that the parties should
continue filing legal papers under the docket number assigned to each case; rather, it stated that
the cases were consolidated under the Rush action at docket number 2017-08904.

On June 8, 2018, the individual Defendant in the four related actions, Laszlo Garay
(“Garay”), filed an original action against Jose Robertson (One of the two plaintiffs in the
2017-08906 action) asserting a claim for defamation.° Shortly thereafter, Robertson, in his
capacity as defendant in the Garay action, moved to consolidate the Garay action with the
Robertson Plaintiffs’ fraud/UTPCPL action against Garay. The Court denied the motion by
order dated October 17, 2018, reasoning in a footnote that the Robertson Plaintiffs’ action
against Garay and the other Defendants had “already been consolidated” under the Rush action
at docket number 2017-08904, and that further consolidation “would tend to mislead or confuse
the jury” because it would introduce new theories of liability and defenses into the cases which
were applicable to only a sub-set of parties.

Subsequently, on November 28, 2018, the Court entered three (3) orders that
restructured the manner in which the four related actions (Rush, Wattamwar, Robertson, and

Makowka) and the Garay defamation action were consolidated. First, the Court vacated its

4 The Court’s use of the language “for all purposes” in its consolidation order was arguably misleading pursuant to
Kincy v. Petro, 2 A.3d 490 (Pa. 2010), wherein the Pennsylvania Supreme Court held that “complete”
consolidation of actions is only appropriate when two or more actions “involve the same parties, subject matter,
issues, and defenses.” Jd., at 495. Here, complete consolidation of the four related actions would not have been
proper because they involve different party-plaintiffs. In any event, the Court entered the consolidation order for
purposes of conducting a single trial of all four actions; the actions, however, would have still produced separate
verdicts and judgments.

> Garay’s defamation action against Robertson was docketed in this Court at 2018-05908-TT.
2017-08905-TT

prior consolidation order of May 7, 2018, thereby undoing the original consolidation of the four
related actions.° Second, the Court sua sponte consolidated three of the four related actions—
Rush, Wattamwar, and Makowka—‘for discovery, pretrial and trial purposes under case
number 2017-08904.”’ Finally, the Court sua sponte consolidated “for discovery, pretrial and
trial purposes” the Garay defamation action against Jose Robertson with the Robertson
Plaintiffs’ fraud/UTPCPL action against Garay.® Consequently, as of November 28, 2018, the
procedural posture of the aforesaid cases stood as follows:
= Garay’s defamation action against Jose Robertson was consolidated with the
Robertson Plaintiffs’ fraud/UTPCPL action against Garay and the other

Defendants;

« Separately, the Rush, Wattamwar, and Makowka actions were consolidated for
purposes of pre-trial and trial administration.

The consolidation of the Garay-Robertson actions and the three-related actions onto
separate pre-trial and trial tracts was prudent because, as noted above, Garay’s action for
defamation was against only one of the six plaintiffs in the four related actions.

Jose Robertson subsequently moved for summary judgment in the Garay defamation
action. On September 23, 2019, the Court granted the motion and entered judgment against
Garay, thereby ending Garay’s defamation claim against Robertson.’ In a footnote to the order,
the Court explained, in light of the fact that Robertson’s summary judgment motion was

granted, the separate consolidations of the Garay-Robertson actions and the three related

® Although the vacation order was entered on the docket only in the Rush action, the prothonotary designated the
original May 7, 2018 consolidation order—which had been entered on the docket in all four actions—“vacated.”

7 This consolidation order was entered on the docket in the Rush, Wattamwar, and Makowka actions; it was not
entered on the docket in the Robertson action.

8 This consolidation order was entered on the docket in both the Garay action and the Robertson action. It was not
entered on the docket in the three related actions.

° The Court’s order granting summary judgment in favor of Robertson and against Garay was a final order
pursuant to Pa. R.A.P. 341(b). Garay did not file a notice of appeal from that order.

2017-08905-TT

actions was no longer necessary. Accordingly, the Court’s September 23, 2019 order also sua
sponte directed that the Robertson Plaintiffs’ fraud/UTPCPL action against Garay and the other
Defendants was “Reconsolidated for pre-trial and trial purposes” under the Rush action at
docket number 2017-08904, thereby once again uniting all four cases for purposes of pre-trial
and trial disposition.

On September 25, 2019, the Court entered an identical order on the docket of all four
actions granting the motions for summary judgment filed by Defendants against the Wattamwar
Plaintiffs, the Robertson Plaintiffs, and Plaintiff Makowka, and entered judgment in favor of
Defendants.'° This is the order from which the Wattamwar’s and Makowka filed notices of
appeal.

On October 3, 2019, the Court issued an order, entered on the docket in all four actions,
which denied as moot multiple outstanding motions which had previously been filed by
Defendants. The final sentence of that order states: “[T]he above-captioned consolidated cases
are hereby severed,” and explained in a footnote that consolidation was “no longer necessary as
summary judgment has been granted in all but one of the consolidated cases.”

On October 23, 2019, the Wattamwar Plaintiffs and Plaintiff Makowka filed notices of
appeal from the Court’s September 25, 2019 order granting summary judgment in favor of
Defendants. Notably, the Wattamwar’s and Makowka each filed two notices of appeal: one

under the Rush action at docket number 2017-08904, and the other under the docket number

© Defendants filed their motions for summary judgment against the Wattamwar Plaintiffs and Plaintiff Makowka
under the docket number assigned to the Rush action; Defendants filed their motion for summary judgment against
the Robertson Plaintiffs under the docket number assigned to the Robertson action. Defendants did not move for
summary judgment against Plaintiff Mary E. Rush in the Rush action. Because Defendants decided to file the
motions applicable to the Wattamwar Plaintiffs and Plaintiff Makowka under docket number assigned to the Rush
action (rather than the docket number assigned to those cases), the Court’s entered its September 25, 2019 on the

docket of all four actions. See footnote 11, infra.
2017-08905-TT

assigned to their case at the time it was filed. This caused four docket numbers to be generated
in the Superior Court, as follows:

« The Wattamwar’s notice of appeal filed under the Rush action at 2017-08904
was docketed in the Superior Court at 3109 EDA 2019;

« Makowka’s notice of appeal filed under the Rush action at 2017-08904 was
docketed in the Superior Court at 3110 EDA 2019;

« The Wattamwar’s notice of appeal filed under the Wattamwar action at 2017-
08905 was docketed in the Superior Court at 3112 EDA 2019;

* Makowka’s notice of appeal filed under the Makowka action at 2017-08907 was
docketed in the Superior Court at 3111 EDA 2019.

The Court suggests that the notices of appeal filed by the Wattamwar Plaintiffs and
Plaintiff Makowka under the docket number assigned to the Rush action should be dismissed
because they are duplicative of the notices of appeal filed under the docket numbers assigned to
Plaintiffs’ respective cases. Pennsylvania Rule of Appellate Procedure 902 states: “An appeal
permitted by law as of right from a lower court to an appellate court shall be taken by filing a
notice of appeal with the clerk of the lower court ....” Pa. R.A.P. 902 (emphasis added).
Implicit in Rule 902’s phrase “filing a notice of appeal” is the requirement that the party taking
an appeal must file the notice on the docket from which the order appealed from is taken. See
generally, Pa. R.C.P 904(d) (Stating that the contents of a notice of appeal “shall include a
statement that the order appealed from has been entered on the docket.”) (emphasis added); cf,
Pane v. Indian Rocks Prop. Owners Ass’n, Inc. of Ledgedale, 167 A.3d 266, 272 (Pa. Cmwith.
2017) (Affirming trial court’s denial of plaintiffs’ motion for sanctions because, inter alia,
plaintiffs filed their notice of appeal under the incorrect docket number in one of two related

cases).

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Here, the Court resolved Defendants’ motions for summary judgment directed at the
Wattamwar, Robertson, and Makowka Plaintiffs in a single order issued September 25, 2019.
That order was then entered on the docket of all four actions. Accordingly, pursuant to Pa.
R.A.P. 902, the Wattamwar Plaintiffs and Makowka Plaintiffs could perfect an appeal by
“filing a notice of appeal” under the docket number assigned to their actions, namely, 2017-
08905 (for the Wattamwar Plaintiffs) and 2017-08907 (for Plaintiff Makowka). That occurred
in these cases. The duplicate notices of appeal filed by the Wattamwar Plaintiffs and Plaintiff
Makowka under the docket number assigned to the Rush action were unnecessary because that
docket number represents the Rush action only, even though the Court’s September 25, 2019
order was entered on the docket in the Rush action.'' Accordingly, the Court recommends
dismissal as duplicative of the Wattamwar and Makowka appeals docketed in the Rush action
at Superior Court docket numbers 3109 EDA 2019 and 3110 EDA 2019, respectively.

Errors Complained of on Appeal

Having outlined the procedural history of these cases, the Court turns to the Wattamwar

Plaintiffs and Plaintiff Makowkas’ statements of errors complained of on appeal. The parties

set forth identical issues for review, restated essentially verbatim as follows:

'! The Court’s May 7, 2018 order which originally consolidated the four related actions states that the cases were
consolidated “under case number 2017-08904.” Likewise, the Court’s November 28, 2018 order consolidating the
Rush, Wattamwar, and Makowka actions states that the cases are consolidated “under case number 2017-08904.”
Finally, the Court’s September 23, 2019 order “reconsolidating” the Robertson action with the Rush, Wattamwar,
and Makowka actions states that the Robertson action is consolidated “under the case captioned Mary E. Rush v.
Laszlo Garay, et al., at docket number 2017-08914.”

It appears that the language quoted above led the parties to the reasonable (albeit erroneous) belief that, in each
instance of consolidation, the actions were entirely merged under the docket number assigned to the Rush action.
As explained, these cases were consolidated so that they could be tried together, not for purposes of “merging”
them into a single action. While in hindsight the phrase “under case number 2017-08904” and similar language in
the Court’s consolidation orders should have been avoided, these terms were simply meant to designate a lead case
among the four related actions. Consequently, the proper method of filing legal papers following each
consolidation would have been for the parties to continue to file under the docket number originally assigned to

each case.
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1. The Learned Trial Judge’s granting of Summary Judgment was an error of law and/or
an abuse of discretion as even if the opinion of the appraiser Donald Garfinkel on
diminished value was disallowed the plaintiffs] would still be entitled to a verdict for
nominal damages as set forth in Sands v. Forrest[,] 290 Pa. Super. 48, 51, 434 A.2d 122,
124 (1981) as well as punitive damages and costs and attorneys’ fees under the Unfair
Trade Practices and Consumer Protection Law.

2. The Learned Trial Judge’s granting of Summary Judgment was an error of law and/or
an abuse of discretion as even the opinion of the appraiser Donald Garfinkel on
diminished value was disallowed the plaintiff[s] as the owner[s] of the real property
[is/are] competent to testify at trial as [to her/their] opinion[s] of the value of the real
property and compare that value to what was paid for the real property. Westinghouse
Air Brake Co. v. City of Pittsburgh, 316 Pa. 372, 176 A. 13 (1934).

3. The Learned Trial Judge’s granting of Summary Judgment was an error of law and/or
an abuse of discretion as the opinion on diminished value of Donald Garfinkel should
be considered by the jury. The plaintiff]s] [was/were] told that the plant would close
within two years, it was not until [she/they] learned the plant was not closing that
[she/they] [was/were] aware of [her/their] damages. Furthermore, the true measure of
damages should be what [the damages] were at the time of the appraisal not at the time
of settlement. If the real property had a diminished value at the time of settlement but
increased substantially by [the] time of trial it could not be said that plaintiff[s]
[was/were] damaged at trial. The measure of damages should be as of the date of trial.

The Court suggests that the issues identified in Plaintiffs’ first and second errors are
waived for failure to preserve them at the trial level. Pennsylvania Rule of Appellate Procedure
302(a) provides: “Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.” Pa. R.C.P. 302(a). In the context of a motion for summary judgment,
Rule 302(a) has been interpreted to require a non-moving party to assert an argument in
opposition to summary judgment in order to preserve that argument for appellate review. See,
e.g., Devine v. Hutt, 863 A.2d 1160, 1169 (Pa. Super. 2004) (“[A]rguments not raised initially
before the trial court in opposition to summary judgment cannot be raised for the first time on
appeal.””); Harber Philadelphia Ctr. City Office Ltd. v. LPCI Ltd. P’ship, 764 A.2d 1100, 1105
(Pa. Super. 2000) (“[A] non-moving party’s failure to raise grounds for relief in the trial court
as a basis upon which to deny summary judgment waives those grounds on appeal.”); Universal

Underwriters Ins, Co. v. A. Richard Kacin, Inc., 916 A.2d 686, 690 (Pa. Super. 2007) (“Our
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caselaw is clear that, in defending against a motion for summary judgment, the non-moving
party’s decision to pursue one argument over another carries the certain consequence of waiver
for those arguments that could have been raised but were not.”) (cleaned up).

Here, none of the arguments set forth in Plaintiffs’ first and second errors were
presented, either explicitly or impliedly, in Plaintiffs’ responses in opposition to Defendants’
motions for summary judgment. Accordingly, they cannot be asserted for the first time in
Plaintiffs’ 1925(b) statements as a basis for reversal or vacation of the Court’s September 25,
2019 order.

To the extent this Court determines that the arguments stated in Plaintiffs’ first and
second errors are not waived, they nonetheless merit no relief.

First, the Court did not err in granting Defendants’ motions for summary judgment on
the basis that Plaintiffs “would still be entitled to a verdict for nominal damages as set forth in
Sands v. Forrest[,] 290 Pa. Super. 48, 51, 434 A.2d 122, 124 (1981).” In Cohen v. Resolution
Tr., 107 F. App’x 287 (3d Cir. 2004) the Third Circuit Court of Appeals!” summarized the
nominal damages issue presented by Plaintiffs as follows:

In Bastian v. Marienville Glass Co., 126 A. 798, 800 (Pa. 1924), the Pennsylvania
Supreme Court held that a plaintiff who failed to establish compensatory damages was
not entitled to nominal damages absent a request for them. Subsequently, Pennsylvania
courts have only reversed a trial court’s failure to award nominal damages if the
plaintiff has, at a minimum, requested nominal damages or sought permission to amend
the complaint to do so. See, Elia v. Olszewski, 84 A.2d 188, 191 (Pa. 1951) (holding
that the plaintiff was entitled to a verdict and nominal damages because the defendant
admitted that it breached the parties’ contract, but noting that the court does “not
ordinarily reverse on this ground alone where no request was made for [nominal

. The Court discusses the unreported Third Circuit decision in Cohen for its persuasive value. See, e.g., O'Toole v.
Pennsylvania Dep't of Corr., 196 A.3d 260, 271 n. 15 (Pa. Cmwlth. 2018) (“Generally, decisions of federal district
courts and courts of appeals are not binding ... but they may have persuasive value. Unreported federal court
decisions may also have persuasive value.”) (cleaned up); Eckman v. Erie Ins. Exch., 21 A.3d 1203, 1207 (Pa.
Super. 2011) (Explaining that the Superior Court may rely on decisions of the federal courts “for guidance to the
degree we find them useful and not incompatible with Pennsylvania law.”).

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damages] at the trial and no establishment of a property right is involved.”); see also,
Sands v. Forrest, 434 A.2d 122, 124 (Pa. Super. 1981) (holding that the plaintiffs’ claim
for fraud should not have been dismissed because the district court should have allowed
them to amend their complaint regarding damages); Peerless Wall & Window
Coverings, Inc. v. Synchronics, 85 F.Supp.2d 519, 536 (W.D. Pa.2000) (concluding
that, under Pennsylvania law, the plaintiff's claim for fraud should not have been
dismissed for failure to prove actual damages because the plaintiff requested nominal
damages as well).

Id., 289 — 90 (cleaned up).

Here, in their complaints filed September 15, 2017, neither the Wattamwar Plaintiffs
nor Plaintiff Makowka requested an award of “nominal damages” against Defendants. To the
contrary, in their fraud claims Plaintiffs sought “an amount in excess of $50,000.00 together
with costs, attorney’s fees, delay damages and punitive damages.” Similarly, in their UTPCPL
claims, Plaintiffs demanded “an amount in excess of $50,000.00 together with costs, attorney’s
fees, triple damages, delay damages and punitive damages.” Nowhere in their complaints or
elsewhere in the record is there a suggestion that Plaintiffs sought nominal damages from
Defendants; nor did Plaintiffs ever seek leave to amend their complaints to include a demand
for nominal damages. Accordingly, the Court did not err in granting Defendants’ motions for
summary judgment on the basis that Plaintiffs would be entitled to a verdict for nominal
damages.

Second, the Court did not err in granting Defendants’ motions for summary judgment
on the basis that Plaintiffs would be entitled to “punitive damages” under the Unfair Trade
Practices and Consumer Protection Law. Section 201-9.2(a) of the UTPCPL addresses the
types of damages available to litigants:

Any person who purchases or leases goods or services primarily for personal, family or
household purposes 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 [under] of this act, may bring a private action to recover

actual damages or one hundred dollars ($100), whichever is greater. The court may, in
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11

its discretion, award up to three times the actual damages sustained, but not less than
one hundred dollars ($100), and may provide such additional relief as it deems
necessary or proper. The court may award to the plaintiff, in addition to other relief
provided in this section, costs and reasonable attorney fees.

73 P.S. § 201-9.2(a). In Richards v. Ameriprise Fin., Inc., 152 A.3d 1027 (Pa. Super.
2016) this Court specified that a “trial court ha[s] the discretion to award ... treble damages,
but the trial court [is] prohibited from imposing punitive damages under the [UTPCPL].” Jd,
1039 - 40. Accordingly, because punitive damages are not an available remedy under the
UTPCPL, the Court did not err in granting Defendants’ motions for summary judgment on the
basis that Plaintiffs would have been entitled to a verdict for punitive damages

Third, the Court did not err in granting Defendants’ motions for summary judgment on
the basis that the UTPCPL entitled Plaintiffs to an award of “costs and attorney’s fees.”
Section 201-9.2(a) of the UTPCPL, supra, authorizes a person to bring a private right of action
to recover “actual damages” as a result of any “method, act or practice declared unlawful”
under the statute. Jbid. The UTPCPL also gives trial courts discretion to award a plaintiff “up to
three times the actual damages sustained” as well as “costs and reasonable attorney fees.” Jbid
However, neither the statute’s treble damages provision nor its costs and attorney’s fees
provision is triggered until a plaintiff prevails on his or her UTPCPL claim, which requires, as
an element, proof of the “actual damages sustained.” See, Krishnan v. Cutler Grp., Inc., 171
A.3d 856, 871 (Pa. Super. 2017) (The UTPCPL “authorizes the trial judge to grant a successful
litigant an award for ... reasonable attorney fees, and costs[.]’”); accord, In re Bell, 314 B.R.
54, 60 (Bankr. E.D. Pa. 2004) (Explaining that because the Debtor in an adversary proceeding

had no actual damages under the UTPCPL, “the Debtor has no actual damages to treble.”).'?

'S See footnote 12, supra.
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12

Herein, the Court’s order determining Defendants’ motions for summary judgment held
that Plaintiffs’ failed to present “competent evidence of damages” because Plaintiffs’ expert
valuation reports relied on a series of incorrect valuation dates. In doing so, the Court cited
Skurnowicz v. Lucci, 798 A.2d 788 (Pa. Super. 2002) (superseded by statute on other grounds
as recognized in Milliken v. Jacono, 60 A.3d 133 (Pa.Super. 2012)), for the proposition that, in
the instant cases, the proper measure of “actual damages” under the UTPCPL was the
difference between the real (or market) values of Plaintiffs’ homes and their misrepresented
values. See, Skurnowicz, 798 A.2d at 795 (Affirming trial court’s awards of “‘actual damages”
under the UTPCPL as measured by “the difference between the [plaintiffs’ home’s] actual
value and the misrepresented value.”). While the Court’s order stated that Plaintiffs failed to
present “competent evidence of damages” (and not “competent evidence of actual damages’),
it is abundantly clear that the Court was delineating the proper measure of “actual damages” for
purposes of Plaintiffs’ UTPCPL claims. Accordingly, because the Court determined that
Plaintiffs’ failed to present competent evidence of “actual damages” under the UTPCPL (and
therefore failed to prove their UTPCPL claims), the Court’s discretion to award “costs and
attorney’s fees” under the statute was never triggered.

Lastly, this Court did not err in granting Defendants’ motions for summary judgment on
the basis that Plaintiffs were competent to offer testimony at trial regarding “the value of the
real property and [to] compare that value to what was paid for the real property.”

As explained in the Court’s September 25, 2019 order, to survive summary judgment
Plaintiffs were required to come forth with evidence of damages as measured by “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 [they were] induced to pay for it.” Sands, 434 A.2d at 124. In

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13

these cases, the relevant “fictitious” values are the amount of money Plaintiffs paid for their
homes—amounts which are in the summary judgment record and which Plaintiffs plainly could
have testified to at trial. However, in the circumstances of these cases, the true “market values”
of Plaintiffs’ homes could only be established by expert evidence.

“Expert testimony becomes necessary when the subject matter of the inquiry is one
involving special skills and training not common to the ordinary lay person.” Storm v. Golden,
538 A.2d 61, 64 (Pa. Super. 1988). Accordingly, if the subject matter to be tried “is so
distinctly related to some science, profession, business or occupation as to be beyond the ken of
the average layman,” it may only be introduced through expert testimony. Wexler v. Hecht, 847
A.2d 95, 99 (Pa. Super. 2004) (cleaned up); see generally, Pa. R.E. 702 (Governing testimony
at trial by expert witnesses).

Here, Plaintiffs alleged that trucks and equipment operating on an asphalt plant adjacent
to the Pickering Crossing residential development generated a significant amount of noise;
Plaintiffs further alleged that they purchased their homes in Pickering Crossing under the
fraudulent assumption that the asphalt plant (and the noise it generated) would cease operations
within two years of the dates of purchase. Accordingly, to establish market values, Plaintiffs
needed proof of what a reasonable buyer would have paid for their homes if the fraudulent
statements and omissions alleged in Plaintiffs’ complaints were never part of the sales
transactions. These amounts would account for the manner in which continuous off-site noise
impacts real property values, and therefore cannot be said to fall within “the ken of the average
layman.” Wexler, 847 A.2d at 99. Instantly, none of the Plaintiffs purport to be an expert in

appraising or otherwise valuing real property impacted by off-site factors such as excessive

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lighting or noise. Accordingly, the Court did not err in granting summary judgment on the basis
that Plaintiffs could have offered opinion testimony on the true market values of their homes.

Plaintiffs’ reliance on Westinghouse Air Brake Co. v. City of Pittsburgh, 176 A. 13 (Pa.
1934) is not to the contrary. There, the Pennsylvania Supreme Court held that an owner of real
property is competent to offer an opinion on the property’s market value provided that the
owner, “through personal knowledge of his property, with a reasonable opportunity to observe
its area, the uses to which it may be put, the extent and condition of any improvements thereon,
possesses sufficient knowledge from which to form an opinion as to [its] value[.]” Jd, at 15. In
the years since Westinghouse, Pennsylvania courts have consistently held that an owner of real
property “is competent to testify about the value of his property so long as his testimony is
based upon his personal knowledge.” Nelson v. State Bd. of Veterinary Med., 938 A.2d 1163,
1171 (Pa. Cmwlth. 2007); see also, Welsh v. City of Philadelphia, 1987 WL 582723 (Pa. Com.
Pl. 1987) (“Pennsylvania cases hold that a property owner may testify about the fair market
value of her property, and need not be held to the standard of an appraiser,” provided that the
owner “has personal knowledge of the property and an understanding as to how it could be
used[.]’”).

The standard of testimonial competency articulated in Westinghouse is not applicable to
the instant actions. Under Westinghouse, “[t]he key to competency is the owner’s knowledge of

his own property.” Nelson, 938 A.2d at 1171 (emphasis added); accord, Welsh, at *1 (Holding

that plaintiff's testimony regarding the fair market value of her residence was “based upon
personal knowledge” because she “lived in the home from 1958 until 1983” and “made
numerous repairs and improvements to it[.]””). Westinghouse thus lowers the burden for

admissibility of real property values at trial because it presupposes that owners are familiar

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with their property in such a way that they may “offer an opinion, for what it may be worth, of

the value of [the] property.” Hencken v. Bethlehem Mun. Water Auth., 72 A.2d 264, 267 (Pa.
1950). Here, by contrast, Plaintiffs could not prove market value by offering opinions based on
their personal knowledge and experience with their homes. To the contrary, for purposes of
Plaintiffs’ claims, they were required to establish market value as of the time their homes were
purchased. See, Sands, supra, 434 A.2d at 12 (Market value measured “at the time of the
transaction.”). Further, Plaintiffs were required to establish a hypothetical market value
premised upon the price or ranges or prices at which Plaintiffs’ homes could have sold for if the
fraudulent statements and omissions alleged in Plaintiffs’ complaints were not part of the sales
transactions. These values are not the type of market value opinion testimony contemplated by
Westinghouse’s “personal knowledge” paradigm. Rather, these are opinions that must be based
upon knowledge acquired by a real estate appraiser over time as to how those statements might
impact the market value of other properties. This is not knowledge within the ken of a
homeowner. Accordingly, the Court did not err in granting summary judgment to Defendants
on the basis that Plaintiffs could have individually offered an opinion at trial on the market
value of their homes.

In their third error complained of on appeal, Plaintiffs assert that the expert reports of
appraiser Donald Garfinkel constituted competent evidence of damages because the market
value of their homes should be measured “at the time of the appraisal” rather than “at the time
of settlement.” Plaintiffs’ appear to contend that measuring damages from the time of appraisal
is a more accurate representation of damages because: (1) Plaintiffs did not become aware that
the market value of their homes diminished until they “learned the plant was not closing”; and

(2) “If the real property had a diminished value at the time of settlement but increased

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substantially by the time of trial it could not be said that [Plaintiffs] were damaged at trial.”
Finally, Plaintiffs also contend that damages should be measured “as of the date of trial,” a
statement that would appear to contradict their assertion that damages should be measured from
the time of appraisal.

In their responses to Defendants’ summary judgment motions Plaintiffs generally
contended that the measure of damages as calculated in the Garfinkel reports constituted
competent evidence of damages. To the extent Plaintiffs’ instant arguments are encompassed
within their argument in opposition to summary judgment, the Court submits that the order
under review adjudged Plaintiffs’ proof of damages as set forth in the Garfinkel reports against
how damages are measured by existing precedent, and determined that Garfinkel’s “time of
appraisal” valuations were an inaccurate measure of damages. To the extent Plaintiffs are
making an argument for the extension or modification of existing law to account for an
alternative method of calculating damages—i.e., a measurement made “at the time of
appraisal” or “at the time of trial”—the Court submits that it was without authority to apply
such a rule to the facts of the instant cases because it is inconsistent with controlling case
authority.

Conclusion

For the foregoing reasons, the order under review should be AFFIRMED.

BY if Cou

| P. MAHON

Dated: 140 4

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Type: OPINION BY
Case Number: 2017-08905-TT

Case Title: WATTAMWAR, PARITOSH et al VS. GARAY, LASZLO ET AL

So Ordered

Wlhancd Mthr—

/s/ William Mahon

Electronically signed on 2019-12-30 14:51:24 page 17 of 17

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