Hosler, B. v. Tweedlie, G.

J-A09028-23

2023 PA Super 223

BENJAMIN D. HOSLER AND DAWN R. : IN THE SUPERIOR COURT OF
HOSLER : PENNSYLVANIA
:
:
v. :
:
:
GARY L. TWEEDLIE AND SUSAN M. :
TWEEDLIE : No. 2 MDA 2022
:
Appellants :

Appeal from the Judgment Entered July 26, 2023,
In the Court of Common Pleas of Juniata County Civil Division at No(s):
2016-00265

BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.

OPINION BY OLSON, J.: FILED: NOVEMBER 1, 2023

Appellants, Gary L. Tweedlie and Susan M. Tweedlie, husband and wife,

(collectively, “Sellers”) appeal from the July 26, 2023 judgment1 entered in

the Court of Common Pleas of Juniata County upon a non-jury verdict in favor

of Buyers. We affirm the judgment, in part, and vacate the judgment, in part,

and remand the case in accordance with this opinion.
____________________________________________

1 Sellers originally appealed from the December 2, 2021 order denying their

post-trial motion seeking, inter alia, judgment non obstante veredicto
(“JNOV”). “[A]n appeal to this Court can only lie from judgments entered
subsequent to the trial court's disposition of any post-verdict motions, not
from the order denying post-trial motions.” Johnston the Florist, Inc. v.
TEDCO Constr. Corp., 657 A.2d 511, 514 (Pa. Super. 1995). Upon remand
of this case, as more fully discussed herein, judgment was entered on July 26,
2023, in favor of Benjamin D. Hosler and Dawn R. Hosler, husband and wife
(collectively, “Buyers”) in the amount of $49,879.87. Sellers’ appeal properly
lies from the July 26, 2023 judgment. Id.; see also Pa.R.A.P. 905(a)(5)
(stating, “[a] notice of appeal filed after the announcement of a determination
but before the entry of an appealable order shall be treated as filed after such
entry and on the day thereof”). The caption has been corrected accordingly.
J-A09028-23

The record reveals that, on August 2, 2016, Buyers filed a complaint

against Sellers alleging causes of action for breach of contract, fraud, and

failure to disclose pursuant to the Real Estate Seller Disclosure Law2 (“RESDL”)

in connection with Buyers’ purchase of a residential property from Sellers. On

August 16, 2016, Sellers filed a preliminary objection pursuant to

Pennsylvania Rule of Civil Procedure 1028(6), asserting that Buyers’ civil

action was not ripe for resolution because Buyers failed to first submit their

disputed claims to mediation, as previously agreed to by the parties. The trial

court sustained Sellers’ preliminary objection on May 3, 2017.

On July 31, 2017, Buyers filed an amended complaint against Sellers,

alleging the same three causes of actions as contained in the original

complaint and asserting that Sellers refused to avail themselves of the

opportunity to submit the matter to mediation/arbitration.3 On August 9,

2017, Sellers filed preliminary objections to Buyers’ amended complaint,

asserting, inter alia, the pendency of mediation. The trial court sustained

____________________________________________

2 68 Pa.C.S.A. §§ 7301 – 7315.

3 Throughout the litigation and appeal, the parties use the terms “mediation”

and “arbitration” interchangeably. Although these are two different concepts
and proceedings, this does not impact our ability to address the issues raised
by Sellers, and we need not concern ourselves with the differences between a
mediation and an arbitration.

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Sellers’ preliminary objections and ordered the parties to submit the matter

to mediation.4

On October 1, 2019, a board of three arbitrators awarded Buyers

$12,000.00 in damages and $1,000.00 in attorney’s fees. On October 2,

2019, Sellers appealed the arbitration award, demanding a trial de novo. See

42 Pa.C.S.A. § 7361(d) (stating that, “[a]ny party to a matter [disposed of by

compulsory arbitration] shall have the right to appeal for trial de novo in the

[trial] court”).

On October 26, 2020, the trial court conducted a non-jury trial, at the

conclusion of which the parties were ordered to submit proposed findings of

fact and conclusions of law. Sellers submitted their proposed findings of fact

and conclusions of law on December 21, 2020, and Buyers submitted their

findings of fact and conclusions of law on December 28, 2020.

On June 29, 2021, the trial court entered a verdict in favor of Buyers

and against Sellers on each of Buyers’ three causes of action and awarded

judgment in the amount of $49,879.87.5 In its June 29, 2021 verdict, the trial

court ordered the prothonotary to enter judgment in favor of Buyers and
____________________________________________

4 The trial court order sustaining Sellers’ preliminary objections was dated
December 12, 2017, but was not docketed by the trial court until December
27, 2017. In the meantime, Sellers filed an answer and new matter to Buyers’
original complaint on December 22, 2017.

5 The trial court awarded judgment in the amount of $38,370.94 on each cause

of action after entering a verdict in favor of Buyers on their claims of breach
of contract, fraud, and failure to disclose under RESDL. The trial court also
awarded $11,508.93 for attorney’s fees.

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against Sellers in the amount of $49,879.87 which the prothonotary did on

the same day.

Sellers filed a motion for post-trial relief seeking JNOV on July 9, 2021,

and a brief in support of their motion for post-trial relief on October 8, 2021.

Buyers filed a brief in opposition to Sellers’ motion for post-trial relief on

November 22, 2021. On December 2, 2021, the trial court denied Sellers’

request for JNOV and “confirm[ed] its order entering judgment in favor of

[Buyers] and against [Sellers] in the amount of $49,879.87.” Trial Court

Order, 12/2/21 (extraneous capitalization omitted). On December 28, 2021,

Sellers filed a notice of appeal challenging the December 2, 2021 order

denying JNOV. Sellers filed a concise statement of errors complained of on

appeal pursuant to Pennsylvania Rule Appellate Procedure 1925(b) on January

12, 2022. On January 27, 2022, the trial court filed its Rule 1925(a) opinion

stating that it was relying on the record to address Sellers’ issues.6

On July 25, 2023, this Court remanded the case to the trial court for the

entry of judgment. Hosler v. Tweedlie, 2023 WL 4742383, at *3 (Pa. Super.

filed July 25, 2023) (unpublished memorandum) In so doing, we explained,

The entry of judgment on June 29, 2021, was premature because
the judgment was entered before the expiration of the 10-day
period in which to file a motion for post-trial relief. Jenkins[ v.
Robertson], 277 A.3d [1196,] 1198 [(Pa. Super. 2022)]. As
____________________________________________

6 In its Rule 1925(a) opinion, the trial court stated that it was relying on the

record without issuance of a further opinion because the trial court judge who
presided over the October 26, 2020 non-jury trial was “no longer an acting
[j]udge.” Rule 1925(a) Opinion, 1/27/22.

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such, the June 29, 2021 entry of judgment is void and of no legal
effect. Id. The record further demonstrates that neither party
filed a praecipe for entry of judgment, and judgment was never
entered by the prothonotary after the December 2, 2021 denial of
[Sellers’] motion for post-trial relief. Because judgment was never
entered outside the 10-day period in which to file a timely
post-trial motion, this Court is without jurisdiction to address the
merits of [Sellers’] issues. Ryan[ v. GAF Corp], 665 A.2d [843,]
844 [(Pa. Super. 1995)].

Tweedlie, 2023 WL 4742383, at *3.7

On July 26, 2023, the prothonotary for the Court of Common Pleas of

Juniata County entered judgment in favor of Buyers and against Sellers in the

amount of $49,879.87. Having perfected our jurisdiction in this matter, we

now turn to Sellers’ appeal.

Sellers raise the following issues for our review:

1. Did the trial court err and abuse its discretion when there
was legally insufficient evidence for a verdict of breach of
contract as to [Sellers], where there was an express
contractual release upon waiver of inspection rights?

2. Did the trial court err and abuse its discretion when there
was legally insufficient evidence for a verdict of fraud by
[Sellers]?

3. Did the trial court err and abuse its discretion when it found
breach of an implied warranty of habitability without basis
in law or fact?

4. Did the trial court err and abuse its discretion by awarding
the [] demolition and replacement cost when the evidence
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7 In remanding this case, we recognized that the parties had already submitted

appellate briefs and participated in oral argument before this Court.
Tweedlie, 2023 WL 4742383, at *3. In the interest of judicial economy, we
did not require the parties to submit additional appellate briefs upon entry of
judgment. Id. at *3 n.6.

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J-A09028-23

did not establish that demolition and replacement was
required?

5. Did the trial court err and abuse its discretion by awarding
attorney's fees, in absence of a recognized exception to the
American Rule?

Sellers’ Brief at 2 (extraneous capitalization omitted).

Our standard and scope of review in an appeal from a judgment entered

on a non-jury verdict

is to determine whether the findings of the trial court are
supported by competent evidence and whether the trial court
committed error in any application of the law. The findings of fact
of the trial [court] must be given the same weight and effect on
appeal as the verdict of a jury. We consider the evidence in a light
most favorable to the verdict winner. We will reverse the trial
court only if its findings of fact are not supported by competent
evidence in the record or if its findings are premised on an error
of law.

J.J. DeLuca Co., Inc. v. Toll Naval Assoc., 56 A.3d 402, 410 (Pa. Super.

2012) (citation omitted).

In the case sub judice, the trial court, as trier-of-fact, made the following

findings of fact:

1. The property was purchased by [Sellers] on [] June [2,]
2011.

2. Shortly after purchasing the property, [Sellers] had an
8-foot by 20-foot addition built onto an existing structure on
the house.

3. [Sellers] did not obtain a building permit for the construction
of the addition nor did they obtain an occupancy permit
upon completion of the construction.

4. The [trial] court finds that structural changes were made to
the residence, which required that a building permit be
issued.

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5. Due to the fact the building permit was not issued, the
addition to the residence was never inspected by a code
enforcement officer or other authorized inspector.

6. The "foundation" supporting the new addition was two
5-gallon buckets filled with stone and buried approximately
18 inches underground, not the 36 inches required by code.

7. There was no concrete fill underneath the buckets.

8. The addition was used as living space by [Sellers] in that a
laminate floor was installed, the addition was [drywalled]
and painted, electric wiring was run behind the [drywall, and
a] beaded board ceiling, windows and an exterior door were
included in the addition.

9. The property was sold to [Buyers] by [Sellers] in 2015.

10. The Listing Agreement prepared by Sellers' real estate agent
listed the addition as a [sunroom] with living space of 342
square feet.

11. The [sunroom] was included as living space in determining
the purchase price of the property.

12. Approximately 6 months after the sale of the real estate,
[Buyers] noticed that defects were beginning to appear in
the [sunroom]. These defects included, but were not limited
to, cracks in the [drywall], cracks above the windows,
separation of the windows from the wall, inability of the
windows to operate properly (open and []shut
completely)[,] and the floor was no longer level.

13. [Buyers] called [Sellers] to discuss these issues. [Sellers]
never responded.

14. [Buyers] also noted other defects such as [the] T-11 siding
was flush with the ground, the shingles were pulling off the
roof[,] and [the roof leaked].

15. [Sellers] did not put a concrete slab under the [sunroom]
addition due to a sewer line running under that space.

16. [Buyers] would not have paid what they ultimately paid for
the property had they known [of] the defective condition of
the [sunroom]. They also testified that they would not have

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purchased the property if they had known the [sunroom]
had serious defects.

17. On [] February [27,] 2020, an estimate to remove and
replace the [sunroom], in the amount of $38,370.94 was
given to [Buyers].

18. On [] February [27,] 2020, an estimate as to the cost to
repair the foundation, windows, flooring, ceiling, et cetera,
was given to [Buyers] in the amount of $45,366.94.

19. [Buyers have] taken steps to control the damage caused by
the defects in the [construction] of the [sunroom].

20. [Buyers] waived a home inspection prior to purchase.

21. The estimates given to [Buyers] on [] February [27,] 2020,
would, as of [the] date of trial, increased 15% to 20% due
to market conditions.

22. [Sellers] reviewed the construction [of] the [sunroom]
every other day, [for] at least 10 to 15 minutes.

23. [Sellers] purchased most, if not all, of the materials for the
construction of the addition.

24. [Seller,] Gary Tweedlie[,] was an experienced builder, a
contractor and landlord. He was aware that a building
permit was needed for the construction of the [sunroom]
addition. The [trial] court [found] that Mr. Tweedlie's
testimony that he was not aware a building permit was
needed or that he assumed his employees would obtain one
was incredulous.

25. [Sellers] failed to disclose on the [RESDL] form that they
had not obtained a building permit for the construction of
the [sunroom.]

26. [Buyers] purchased the real estate on June 26, 2015, from
[Sellers] for a price of $285,568.84.

27. [Buyers] filed suit against [Sellers] on three grounds. First,
breach of contract, second on fraud[,] and third on violation
of [RESDL].

Trial Court Opinion, 6/29/21, at 1-4 (extraneous capitalization omitted).

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J-A09028-23

We begin by addressing Sellers’ first and third issues, which challenge

the verdict in favor of Buyers on their breach of contract claim. Sellers assert

that there was insufficient evidence to support a finding by the trial court that

Sellers breached their agreement with Buyers. Sellers’ Brief at 6-7, 28-29.

Specifically, Sellers assert that the Agreement of Sale included waiver clauses

that “expressly and unequivocally disclaimed any [] warrant[ies]” including an

implied warranty of habitability. Id. at 6-7. Sellers argue that “[r]eading the

contract [] in accordance with [its] express terms, all contractual warranties

as to the structure were expressly waived and claims under [the] contract

released.” Id. at 28. Sellers assert that “[t]he waiver[ clauses in the contract]

control as to the [breach of contract] claim and it was an error of law to hold

otherwise.” Id. at 29.

In the case sub judice, Sellers do not dispute the existence of a valid

contract between the parties for the purchase of the residential home at issue

but, rather, they dispute the terms of that contract, and in particular the

existence of an implied warranty of habitability.8 As such, we turn to an

____________________________________________

8 The trial court awarded damages in favor of Buyers on their breach of
contract claim. This award was based upon the trial court’s limited finding
that Sellers breached the implied warranty of habitability. As such, our review
of Sellers’ claims is limited to the applicability of the implied warranty of
habitability as a means for awarding damages on a breach of contract claim
in the case sub judice. See Ecksel v. Orleans Co., 519 A.2d 1021, 1026
(Pa. Super. 1987) (stating that, because an implied warranty of habitability is
inherent in a contract, the failure to couch a breach of contract cause of action
in the exact terms of this implied warranty “does not preclude the [trial] court
from ruling upon that theory”).

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examination of the law governing an implied warranty of habitability as it

applies to the purchase of a residential home. In the seminal case, Elderkin

v. Gaster, 288 A.2d 771 (Pa. 1972), our Supreme Court held that a

“builder-vendor impliedly warrants that the home he[, or she, builds and sells]

is constructed in a reasonably workmanlike manner and that it is fit for the

purpose intended—habitation.” Elderkin, 288 A.2d at 777. In reaching this

conclusion, the Elderkin Court began by examining the common law doctrine

of caveat emptor, which required “that in the absence of fraud or

misrepresentation[,] a vendor is responsible for the quality of the property

being sold by him[, or her,] only to the extent for which he[, or she,] expressly

agrees to be responsible.” Id. at 774. Our Supreme Court noted that “[t]he

theory of the [caveat emptor] doctrine is that the buyer and seller deal at

arm's length, each with an equal means of knowledge concerning the subject

of the sale, and that therefore the[] buyer should be afforded only those

protections for which he[, or she,] specifically contracts.” Id. at 774-776

(stating, “[c]aveat emptor developed when the buyer and seller were in an

equal bargaining position[,] and they could readily be expected to protect

themselves in the deed”). The Elderkin Court reasoned, however, that a

“builder-vendor is manifestly in a better position than the normal vendee to

guard against defects in the home site and if necessary to protect himself[, or

herself,] against potential but unknown defects in the projected home site.”

The Elderkin Court recognized “that the implied warranties of habitability and

reasonable workmanship were necessary to equalize the disparate positions

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of the builder-vendor and the average home purchaser by safeguarding the

reasonable expectations of the purchaser compelled to depend upon the

builder-vendor's greater manufacturing and marketing expertise.” Tyus v.

Resta, 476 A.2d 427, 431 (Pa. Super. 1984).

Based upon Elderkin, and its progeny, the doctrine of implied warranty

of habitability, which requires a builder-vendor to warrant that the

construction of the new home was performed in a reasonably workmanlike

manner and that the home is fit for habitation, arises impliedly in a contract

between a builder-vendor and the first purchaser of the newly constructed

home. See Elderkin, 288 A.2d at 777; see also Tyus, 476 A.2d at 431;

Conway v. Cutler Group, Inc., 99 A.3d 67, 70-73 (Pa. 2014) (declining to

extend the doctrine of implied warranty of habitability to second and

subsequent purchasers of the home due to lack of privity between that

purchaser and the builder-vendor). Therefore, in order to recover for a breach

of contract claim based upon a breach of an implied warranty of habitability,

a plaintiff must demonstrate that (1) the seller is a builder-vendor; (2) the

plaintiff is a purchaser in privity of contract with the builder-vendor; (3) that

the residential property involves a newly-constructed home; (4) that the

construction was not performed in a reasonably workmanlike manner; and (5)

as a result of the defective construction, the newly-constructed home is not

habitable. See Elderkin, 288 A.2d at 777; see also Tyus, 476 A.2d at 431;

Conway, 99 A.3d at 70-73. Pertinent to our disposition herein is the definition

of a “builder-vendor,” which for purpose of the implied warranty of habitability

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is “one who buys land and builds a home upon that land for purpose of sale

to the general public.”9 Elderkin, 288 A.2d at 774 n.10. Additionally,

“[c]ompared to the ordinary home purchaser, the builder-vendor possesses

superior knowledge and expertise in all aspects of building, including its legal

aspects.” Tyus, 476 A.2d at 431 (citation and original quotations marks

omitted).

Here, the trial court, in finding in favor of Buyers on their breach of

contract claim, held Gary Tweedlie out as a “builder-vendor” who breached an

implied warranty of habitability in the contract with Buyers for the purchase

of the residential property because he failed “to provide a habitable

[sunroom], which impacted the habitability of the entire residence.” Trial

Court Opinion, 6/29/21, at 4-5 (stating that, Gary Tweedlie was not only the

vendor of the real estate but also the builder of the [sunroom] which was

added on to the house during his ownership”); see also id. at ¶24 (stating,

“Gary Tweedlie was an experienced builder, a contractor[,] and landlord”).

Based upon Elderkin, and its progeny, we find that the trial court erred

as a matter of law by designating Gary Tweedlie as a builder-vendor and, thus,

erred in determining that the doctrine of implied warranty of habitability

applied in the case sub judice. As discussed supra, the Elderkin Court defined
____________________________________________

9 In defining “reasonable workmanship,” the Elderkin Court explained that
this term was “not the equivalent of building perfection, but must be viewed
as meaning reasonable under the circumstances.” Elderkin, 288 A.2d at 776
n.13. The Elderkin Court further noted that “‘habitable’ is not easily defined
and must be approached on a case[-]by[-]case basis.” Id.

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a builder-vendor as someone who buys land and builds a home upon that land

for purposes of sale to the general public. Elderkin, 288 A.2d at 774. This

Court further curtailed that definition by stating that a builder-vendor

possesses “superior knowledge and expertise in all aspects of building,

including its legal aspects.” Tyus, 476 A.2d at 431. While we concur with the

trial court that Gary Tweedlie is an experienced builder and contractor (see

Trial Court Opinion, 6/29/21, at ¶24), we cannot find that his skills as a builder

and contractor fall within the definition of a builder-vendor contemplated by

the Elderkin Court, and its progeny, for purpose of an implied warranty of

habitability.

Gary Tweedlie testified that he was the owner of a steel fabrication

company until his retirement in June 2010. N.T., 10/26/20, at 216. When

asked on cross-examination what type of construction he performed, Gary

Tweedlie responded “structural steel,” explaining that he erected the

structural steel framework for commercial establishments. Id. at 240-241.

He further explained that once he erected the structural steel shell of a

building, a general contractor finished building the commercial building. Id.

at 241.

The implied warranty of habitability is limited to residential construction,

as it was intended to equalize the positions of an experienced builder-vendor

and a home buyer in negotiations involving a residential home. As such, a

builder-vendor, for purpose of the implied warrant of habitability, is someone

who possesses specialized skills in building all aspects of a residential home,

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including acquisition of any necessary building permits and occupancy

permits, and does so with the intent of selling that residential home for profit.

See Elderkin, 288 A.2d at 774 n.10. Here, Gary Tweedlie’s skill set was

limited to the fabrication of steel and the erection of structural shells for

commercial buildings that were later finished by a general contractor. Within

the purview of Elderkin, and its progeny, even viewing the evidence in the

light most favorable to Buyers, as verdict winners, Gary Tweedlie does not

qualify as a “builder-vendor” for purpose of the implied warranty of

habitability. Therefore, the trial court erred as a matter of law in relying on

the doctrine of an implied warranty of habitability to find that Sellers breached

their contract with Buyers.

In the second issue, Sellers challenge the trial court’s verdict on Buyers'

fraud claim on the ground that there was insufficient evidence to support a

finding of fraud. Sellers’ Brief at 30-33. Sellers assert that whether they

“knew that the post foundations were defective and constituted a material

defect at the time of closing is the actual issue” in the fraud claim. Id. at 33.

Sellers argue that “[a]bsence of disclosure, one way or another, as to the

permit status of a home improvement in no way establishes knowledge that

there is a material defect in the home.” Id.

It is well-established that

[t]o prove fraud, a plaintiff must demonstrate by clear and
convincing evidence:

(1) a representation; (2) which is material to the transaction
at hand; (3) made falsely, with knowledge of its falsity or

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recklessness as to whether it is true or false; (4) with the
intent of misleading another into relying on it; (5) justifiable
reliance on the misrepresentation; and (6) the resulting
injury was proximately caused by the reliance.

Blumenstock v. Gibson, 811 A.2d 1029, 1034 (Pa. Super. 2002), quoting

Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994), appeal denied, 828 A.2d 349

(Pa. 2003).10 “[F]raud consists of anything calculated to deceive, whether by

single act or combination, or by suppression of truth, or suggestion of what is

false, whether it be by direct falsehood or by innuendo, by speech or silence,

word of mouth, or look or gesture.” Moser v. DeSetta, 589 A.2d 679, 682

(Pa. 1991). “The concealment of a material fact can amount to a culpable

misrepresentation no less than does an intentional false statement.” Id.

In finding in favor of Buyers and against Sellers on the fraud cause of

action, the trial court stated,

The second cause of action presented by [Buyers] is a claim for
fraud. Fraud is based on a representation that the home was in
good and marketable condition and that it had a properly
constructed [sunroom]. In order to prove fraud, [Buyers] must
also show that false representations were made by [Sellers]
pertaining to the good and marketable condition of the home, that
[Sellers] knew the representations were false [or they were]
reckless in making those representations[,] and they intended to
mislead [Buyers].

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10 The Gibbs Court explains that a cause of action for fraud is also commonly

referred to as a cause of action for intentional misrepresentation. Gibbs, 647
A.2d at 889; see also Gregg v. Ameriprise Fin., Inc., 245 A.3d 637, 645
(Pa. 2021) (referring to a cause of action for fraud as synonymous to a cause
of action for intentional misrepresentation).

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The [trial] court believes that by failing to disclose on the [RESDL]
form whether or not a building permit had been issued, rises to
the level of fraud on the part of [Sellers].

The law is well[-]settled that [a] seller is required to disclose all
material defects of which [he or she] had knowledge. [Gary]
Tweedlie testified that he was not aware that a building permit
was needed and, if it was needed, it was the responsibility of his
employees. The [trial] court finds that testimony to be untruthful
and finds that the failure to disclose the non-existence of a
building permit was done with the intent to mislead [Buyers]. The
[trial] court, therefore, awards damages for the fraud claim in the
amount of $38,370.94.

Trial Court Opinion, 6/29/21, at 5 (extraneous capitalization omitted).

The trial court based its finding of fraud not upon the representations

(or material omissions) contained within the Agreement of Sale but, rather,

upon Sellers’ representations contained within the RESDL form.11 RESDL,
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11 We discern no error in the trial court’s relianceupon the representations
contained in the RESDL form, rather than the Agreement of Sale. Paragraph
25(A) of the Agreement of Sale states, in pertinent part,

All representations, claims, advertising, promotional activities,
brochures or plans of any kind made by Seller, Brokers, their
licensees, employees, officers[,] or partners are not a part of this
Agreement unless expressly incorporated or stated in this
Agreement. This Agreement contains the whole agreement
between Seller and Buyer, and there are no other terms,
obligations, covenants, representations, statements[,] or
conditions, oral or otherwise, of any kind whatsoever concerning
this sale.

Buyers’ Exhibit M (Agreement of Sale) at ¶25(A) (emphasis added). Although
paragraph 10(E) of the Agreement of Sale informs Buyers of Sellers’
obligations to make certain representations pursuant to RESDL, this paragraph
does not expressly incorporate the representations previously made by Sellers
pursuant to RESDL into the Agreement of Sale. Moreover, we can find no
provision in RESDL that expressly states that representations made pursuant

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which became effective in 2001, requires a seller of real property, except in

certain instances not present in the case sub judice, to disclose to a buyer,

prior to the signing of an agreement of sale or transfer, “any material defects

with the property known to the seller[.]”12 68 Pa.C.S.A. §§ 7302 and 7303.

The term “material defect” is defined as

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

68 Pa.C.S.A. § 7102.

At a minimum, a seller, pursuant to RESDL, is required to make

disclosures pertaining to material defects

____________________________________________

to this law are incorporated into an agreement of sale. See 68 Pa.C.S.A.
§§ 7301 – 7315. Rather, Section 7303 of RESDL simply requires that “[a]
signed and dated copy of the property disclosure statement shall be delivered
to the buyer in accordance with section 7305 (relating to delivery of disclosure
form) prior to the signing of an agreement of transfer by the seller and buyer
with respect to the property.” 68 Pa.C.S.A. § 7303. Absent express
incorporation of the RESDL form into an agreement of sale, which is not
present in the case sub judice, representations made in the RESDL form
cannot be found to exist within the four corners of an agreement of sale.

12 “RESDL is intended to protect the purchaser of real property, and the
method of protection is a disclosure statement . . . that the seller has to
complete so that presumably the buyer accurately knows what the seller
knows about the property when the sale occurs.” Phelps v. Caperoon, 190
A.3d 1230, 1245 (Pa. Super. 2018) (citation and original quotation marks
omitted).

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J-A09028-23

with respect to all of the following subjects: (1) seller's expertise
in contracting, engineering, architecture[,] or other areas related
to the construction and conditions of the property and its
improvements[;] (2) when the property was last occupied by the
seller[;] (3) roof[;] (4) basements and crawl spaces[;] (5)
termites/wood destroying insects, dry rot[,] and pests[;] (6)
structural problems[;] (7) additions, remodeling[,] and
structural changes to the property[;] (8) water and sewage
systems or service[;] (9) plumbing system[;] (10) heating and air
conditioning[;] (11) electrical system[;] (12) other equipment and
appliances included in the sale[;] (13) soils, drainage,
boundaries[,] and sinkholes[;] (14) presence of hazardous
substances[;] (15) condominiums and other homeowners
associations[;] (16) legal issues affecting title or that would
interfere with use and enjoyment of the property[;] (17)
condition, if known, and location of all storm water facilities,
including a statement disclosing whether ongoing maintenance of
the storm water facilities is the responsibility of the property
owner or the responsibility of another person or entity.

68 Pa.C.S.A. § 7304(b) (formatting modified; extraneous capitalization

omitted; emphasis added). Section 7308 of RESDL places an affirmative duty

on the seller, in completing a disclosure form, to “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. “The seller is not obligated

[under RESDL] to make any specific investigation or inquiry in an effort to

complete the property disclosure statement.” Id. “If at the time the

disclosures are required to be made, an item of information required to be

disclosed is unknown or not available to the seller, the seller may make a

disclosure based on the best information available to the seller.” 68 Pa.C.S.A.

§ 7306.

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J-A09028-23

A review of the RESDL form in the case sub judice reveals that Sellers

disclosed that, as an addition to the home, a “side porch was expanded [and]

enclosed with windows[.]” See Buyers’ Exhibit E at ¶8. In making this

disclosure, Sellers left blank, or did not provide an answer to, the following

questions pertaining to disclosures involving the sunroom addition:

[1.] Approximate date of work.

[2.] Were permits obtained? (Yes/No/Unknown)

[3.] Final inspections/approvals obtained? (Yes/No/Unknown)

Id. Finally, under the “miscellaneous” section of the RESDL form, Sellers

answered “no” to the question, “Are you aware of any material defects to the

property, dwelling, or fixtures which are not disclosed elsewhere on this

form?” Id. at ¶20(D)(1).

Gary Tweedlie testified that he employed two former employees of his

steel fabrication company to construct the sunroom. N.T., 10/26/20, at 220.

The parties did not enter into a written contract regarding the construction

project. Id. Rather, Gary Tweedlie stated that he told the two former

employees what he wanted as an end-product, i.e., a sunroom, and left it to

the former employers to determine how to achieve the end result. Id. The

former employees were paid cash for their labor, and Gary Tweedlie procured

the necessary supplies for the construction project based upon a list provided

by the employees. Id. at 221. Gary Tweedlie testified that he never obtained

building or occupancy permits but, rather, thought the two former employees

would obtain the necessary permits. Id. at 223, 237. The building code

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J-A09028-23

official for the township in which the residence was located testified that either

the homeowner or a person representing the homeowner could apply for a

building permit but that, ultimately, it was the responsibility of the homeowner

to ensure that a building permit was obtained for an addition such as the

sunroom. Id. at 28. Gary Tweedlie stated that, in completing the RESDL

form, he was aware that he did not obtain a building permit but was unaware

if the two former employees obtained a building permit. Id. at 237-238. As

such, he did not provide an answer to the question, “Were permits obtained?

(Yes/No/Unknown).” Id.

In viewing the evidence in the light most favorable to Buyers, as verdict

winners, we concur with the trial court, and the record supports, that Sellers

failed to make a disclosure of a material defect pertaining to the sunroom,

namely that neither a building permit nor an occupancy permit were obtained

relative to the construction.13 Pursuant to RESDL, a material defect includes

“legal issues affecting title or that would interfere with use and enjoyment of

the property[.]” As such, the lack of a building permit and, ultimately, an

occupancy permit, relating to an addition such as a sunroom, or the

construction of the over-all residence, constitutes a material defect because

the lack thereof affects the good and marketable title of the property and the
____________________________________________

13The building code official testified that when a homeowner applies for a
building permit, the application also serves as a request to have an occupancy
permit issued once the construction is inspected and determined to have been
built in accordance with all applicable building code regulations. N.T.,
10/26/20, at 34.

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J-A09028-23

use and enjoyment of the property, at least until the proper permits can be

obtained. In completing the RESDL form, Sellers failed to disclose, at the very

least, that it was “unknown” whether a building permit or an occupancy permit

had been obtained for the sunroom addition. The trial court found Gary

Tweedlie’s testimony that he did not understand the need to obtain a building

permit or occupancy permit for the construction of a building or residence to

be incredulous based upon his experience, as a steel fabricator, in the

construction business. As such, this failure to make any disclosure regarding

a building permit or final approval, i.e., an occupancy permit, constituted a

reckless disregard for whether the permits were or were not obtained.

Therefore, relative to Buyers' fraud claim, we discern no error or abuse

of discretion in, and the record supports, the trial court’s determinations that

Sellers, in the course of completing the RESDL form, made a representation

that was material to the transaction, i.e., whether a building permit or

occupancy permit had been obtained, and that the representation was made

with reckless disregard as to its veracity with the intent of misleading Buyers.

See Blumenstock, 811 A.2d at 1034. Buyers were required, however, to

show that they justifiably relied upon the representation. See id.

At trial, Benjamin Hosler testified that he did not inquire as to whether

Sellers secured a building permit in conjunction with the sunroom addition

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J-A09028-23

until after the purchase of the residence was completed.14 N.T., 10/25/20, at

94 (stating that, on January 10, 2016, he received an electronic mail response

to his inquiry indicating the lack of a land use permit). On cross-examination,

when asked whether Sellers’ failure to answer “yes, no, or unknown” on the

building permit and occupancy permit questions relative to the sunroom

disclosure was of concern to him, Benjamin Hosler stated, “[i]t didn’t concern

me[.]” Id. at 124. Benjamin Hosler explained, however, that absent those

representations regarding the building permit and occupancy permit, he would

have still purchased the house but would have offered less money. Id. at

148-150.

Even when viewed in the light most favorable to Buyers as verdict

winners, Benjamin Hosler’s testimony that he was not concerned about the

lack of Sellers’ answers regarding the existence of a building permit or

occupancy permit for the sunroom addition negates a finding, in the case sub

judice, that Buyers justifiably relied upon the information provided, or lack of

information, in deciding to purchase the residence.15 The RESDL form
____________________________________________

14 The RESDL form included a pre-printed “note to buyer,” which, in pertinent

part, stated that “[b]uyers should check with the municipality to determine if
permits [or] approvals were necessary for disclosed work and[,] if so, whether
they were obtained.” Buyers’ Exhibit E at ¶8.

15 In finding in favor ofBuyers on the fraud cause of action, the trial court
stated, “[i]n order to prove fraud, [Buyers] must [] show that false
representations were made by [Sellers] pertaining to the good and marketable
condition of the home, that [Sellers] knew the representations were false [or
were] reckless in making those representations[,] and they intended to

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J-A09028-23

contained a notice to Buyers, as discussed supra, that advised them to check

with the municipality to determine if permits had been obtained for the

addition. In light of Sellers’ failure to provide answers regarding the status of

the building and occupancy permits, as well as the notice to Buyers to check

with the municipality, Buyers failed to prove by clear and convincing evidence

that their reliance on these unanswered questions was justified. See Porreco

v. Porreco, 811 A.2d 566, 571 (Pa. 2002) (stating, courts are “hesitant to

find reliance justified where the party claiming reliance had an adequate

opportunity to verify the alleged fraudulent statements”) (Opinion Announcing

the Judgment of the Court). Therefore, the trial court erred as a matter of

law and abuse its discretion in awarding a verdict in favor of Buyers based

upon a cause of action for fraud.

To the extent that Sellers challenge the trial court’s verdict in favor of

Buyers based on a cause of action for failure to disclose a material defect

pursuant to RESDL, we discern no abuse of discretion or error of law in the

trial court’s determination.16 The disclosures required under RESDL, as
____________________________________________

mislead [Buyers].” Trial Court Opinion, 6/29/21, at 5. In discussing the
elements necessary to establish a cause of action for fraud, the trial court
failed to recognize, and consider, inter alia, the element of “justifiable
reliance.” Blumenstock, 811 A.2d at 1034.

16 In order to establish a cause of action for violation of RESDL, the buyer
must establish that the seller had a duty to disclose the material defect, that
the seller willfully or negligently breached that duty, and as a result of that
breach, buyer suffered actual damages. See 68 Pa.C.S.A. § 7311; see also
Medlock v. Chilmark Home Inspections, LLC, 195 A.3d 277, 290

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J-A09028-23

discussed supra, are mandatory. See 68 Pa.C.S.A. § 703 (stating, the seller

“shall disclose to the buyer any material defects with the property” (emphasis

added)). In making such a disclosure, the seller is required to disclose any

known material defects pertaining to, inter alia, additions to the property, such

as the sunroom in the case sub judice, and legal issues, such as the lack of a

building permit and occupancy permit in the case sub judice, affecting title or

use and enjoyment of the property. 68 Pa.C.S.A. § 7304(b)(7) and (16). If

“an item of information required to be disclosed is unknown or not available

to the seller, the seller may make a disclosure based on the best information

available to the seller[,]” and the seller is not obligated “to make any specific

investigation or inquiry in an effort to complete the property disclosure

statement.” 68 Pa.C.S.A. § 7306 and § 7308. Thus, if the status of a material

____________________________________________

(Pa. Super. 2018). As such, nondisclosure under RESDL is a separate and
distinct theory of relief that requires elements different from those required
for a cause of action based on fraud. For example, “justifiable reliance” is not
an element for establishing a violation of RESDL.

A review of Sellers’ Rule 1925(b) statement reveals that Sellers do not
challenge the trial court’s verdict in favor of Buyers based on the failure to
disclose under RESDL cause of action. In their appellate brief, however,
Sellers assert that “[t]here was legally insufficient evidence for a verdict of []
failure to disclose[.]” Sellers’ Brief at 30 (extraneous capitalization omitted).
Because our disposition of Sellers’ challenge to the verdict based upon the
fraud cause of action encapsulates a discussion of RESDL and whether Sellers
failed to make all necessary disclosures thereunder, we decline to find this
issue waived. Moreover, the trial court, in addressing Sellers’ issues, relied
upon the June 29, 2021 opinion entered at the conclusion of the non-jury trial,
which addressed the RESDL cause of action, and the record. In this instance,
Sellers’ failure to raise the issue in its Rule 1925(b) statement does not
preclude our review.

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J-A09028-23

defect pertaining to the addition, i.e., a lack of building permit or occupancy

permit, is unknown to the seller, the seller is required to disclose that he or

she does not know that status.

In viewing the evidence in the light most favorable to Buyers as verdict

winners, the lack of a building permit and an occupancy permit for the

sunroom affected the good and marketable title of the residence and impacted

Buyers' use and enjoyment of the sunroom. Therefore, the lack of these

permits constituted a material defect. Gary Tweedlie testified that he did not

obtain a building permit or occupancy permit for the addition and that he was

uncertain whether the two former employees who constructed the sunroom

obtained the necessary permits. As such, Gary Tweedlie violated RESDL when

he failed to disclose that it was “unknown” whether a building permit or

occupancy permit had been obtained for the addition. The notice to buyer

contained within the RESDL form does not negate Sellers’ obligations to

indicate “yes, no, or unknown” to the questions regarding the building permit

or occupancy permit. Therefore, a challenge to the trial court’s verdict based

upon RESDL is without merit.

In their fourth issue, Sellers challenge the trial court’s award in the

amount of $38,370.94 in favor of Buyers based upon the cost estimate to

replace the sunroom. Sellers’ Brief at 2. Sellers assert that the trial court

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J-A09028-23

erred by awarding “demolition and replacement costs when the evidence did

not establish that demolition and replacement was required.”17 Id.

In entering a verdict in favor of Buyers based upon the failure to disclose

under RESDL cause of action, the trial court awarded damages in the amount

of $38,370.94. This damage award was based upon an estimate for the

replacement costs associated with the sunroom. See Buyers’ Exhibit H. In

awarding replacement costs, the trial court rejected Buyers' cost estimate to

repair the sunroom in the amount of $45,366.94 as the actual damages

incurred by Buyers as a result of Sellers’ failure to disclose under RESDL.

Section 7311 of RESDL states that “any person who willfully or

negligently violates or fails to perform any duty prescribed by any provisions

of [RESDL] shall be liable in the amount of actual damages suffered by the

buyer as a result of the violation of this chapter.” 68 Pa.C.S.A. § 7311. As

this Court recently noted, “RESDL does not define the term “actual

damages[.]” Phelps, 190 A.3d at 1244. In Phelps, this Court held that

“actual damages” for purpose of RESDL “may be determined by the repair

costs, capped by the market value of the property.” Id. at 1246 (emphasis

added). Based upon the same logic employed by the Phelps Court and a

review of the protective purpose of RESDL, which requires RESDL to be

____________________________________________

17 We note that Sellers’ brief does not contain a specific section devoted to an

argument in support of their fourth issue. See Sellers’ Brief at 28 (breach of
contract claim), 29 (RESDL and fraud claims), 33 (implied warranty of
habitability), 36 (attorney’s fees), and 44 (causation).

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J-A09028-23

liberally construed to achieve the legislature’s intended remedial goal, we

similarly find that “actual damages” for purpose of RESDL may also be

determined by the replacement costs, capped by the market value of the

property. Damages must be assessed on a case-by-case basis for purpose of

RESDL, and it remains within the discretion of the trial court to ascertain which

costs, repair or replacement, best redresses the actual damages incurred by

the buyer.

In the case sub judice, the township building code official testified that

the addition of the sunroom required a building permit and an occupancy

permit as part of its construction. N.T., 10/26/20, at 9, 32-34. The building

code official further stated that in order to obtain a building permit, and

ultimately an occupancy permit, the building code would require the sunroom

to have a full foundation underneath it for support. Id. at 10. The sunroom,

in its current condition, was not properly constructed to allow for a building

permit or occupancy permit to be issued, primarily because the post

foundation did not go below the frost line, as required by applicable building

code. Id. at 10-11. A construction contractor evaluated the sunroom and

provided both a replacement cost estimate and a repair cost estimate. See

Buyers’ Exhibit H. The replacement cost estimate was $38,370.94, and the

repair cost estimate was $45,366.94. Id. The contractor explained that

replacing the sunroom, which would include demolition of the existing

sunroom and reconstruction with a proper foundation, would be more cost

effective than repairing the structure because in replacing the structure you

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J-A09028-23

did not have to worry about something breaking, thereby increasing the costs.

Id. at 157.

In assessing damages based upon Sellers’ violation of RESDL, we concur

with the trial court, and the record supports, that Buyers were entitled to

receive replacement cost value as actual damages pursuant to RESDL. The

replacement costs, in the case sub judice, represented the most cost-effective

means of remedying Buyers’ damages and ultimately would allow their use

and enjoyment of the sunroom once it was properly reconstructed in accord

with building code provisions and upon the issuance of an occupancy permit.

Therefore, Sellers’ challenge to the verdict in the amount of $38,370.94 is

without merit.

In their final issue, Sellers challenge the trial court’s award of attorney’s

fees, as part of the verdict, in the amount of $11,508.93. Sellers’ Brief at

36-43. Sellers argue that the trial court erred in finding that Buyers were

entitled to attorney’s fees pursuant to Section 2503 of the Judicial Code. Id.

at 37-43.

It is well-established that “[u]nder the American Rule, applicable in

Pennsylvania, a litigant cannot recover counsel fees from an adverse party

unless there is express statutory authorization, a clear agreement of the

parties, or some other established exception.” Trizechahn Gateway LLC v.

Titus, 976 A.2d 474, 482-483 (Pa. 2009). Absent an agreement between the

parties, a party is entitled to reasonable attorney’s fees, inter alia, as a

sanction against another party “for dilatory, obdurate[,] or vexatious conduct

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J-A09028-23

during the pendency of a matter.” 42 Pa.C.S.A. § 2503(7). Recently, our

Supreme Court defined the terms “dilatory, obdurate, and vexatious” as

follows:

Vexatious conduct is without reasonable or probable cause or
excuse; harassing; annoying. [O]bdurate conduct may be
defined in this context as stubbornly persistent in wrongdoing.
Conduct is dilatory where the record demonstrates that counsel
displayed a lack of diligence that delayed proceedings
unnecessarily and caused additional legal work.

County of Fulton v. Sec’y of Commonwealth, 292 A.3d 974, 1014 (Pa.

2023) (citations and quotation marks omitted; emphasis in original).

In awarding attorney’s fees pursuant to Section 2503(7), the trial court

is required to first made specific findings of dilatory, obdurate, or vexatious

conduct. Township of South Strabane v. Piecknick, 686 A.2d 1297, 1301

(Pa. 1996); see also Sutch v. Roxborough Mem’l Hosp., 142 A.3d 38, 69

(Pa. Super. 2016) (stating, “[a]ny award of counsel fees pursuant to [Section]

2503(7) must be supported by a trial court's specific finding of dilatory,

obdurate[,] or vexatious conduct” (citation, original quotation marks, and

original brackets omitted)), appeal denied, 163 A.3d 399 (Pa. 2016).

Typically, in considering a request for attorney’s fees under Section 2503, an

evidentiary hearing is required. Sutch, 142 A.3d at 69; see also Kulp v

Hrivnak, 765 A.2d 796, 800 (Pa. Super. 2000) (stating, when “the record is

unclear as to facts surrounding the litigant's conduct, a hearing must be held

to develop the record”).

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J-A09028-23

“[A]n award of counsel fees is intended to reimburse an innocent litigant

for the expenses the conduct of an opponent makes necessary.” Sutch, 142

A.3d at 69. Stated another way, an award of attorney’s fees is limited to the

reasonable attorney’s fees and costs incurred as a direct result of the dilatory,

obdurate, or vexatious conduct. See Thunberg v. Strause, 682 A.2d 295,

298 (Pa. 1996).

Finally,

Appellate review of a trial court's order awarding attorney's fees
to a litigant is limited solely to determining whether the trial court
palpably abused its discretion in making a fee award. If the record
supports a trial court's finding of fact that a litigant violated the
conduct provisions of the relevant statute providing for the award
of attorney's fees, such award should not be disturbed on appeal.

Thunberg, 682 A.2d at 299 (citations omitted).

In awarding attorney’s fees to Buyers in the case sub judice, the trial

court stated,

Counsel fees may be awarded as a sanction against the parties for
dilatory, obdurate[,] and vexatious conduct [pursuant to] Section
2503. As testified at trial, [Sellers] filed preliminary objections
indicating [Buyers] had to participate in arbitration. [Buyers]
resisted and paid legal fees for that resistance. The [trial] court
informed [Buyers] that arbitration was required and they,
therefore, took the necessary steps for arbitration to occur.
Contrary to the position of [Sellers] requiring arbitration, [as]
supported by the [trial] court[, Sellers] failed to respond to the
first request for arbitration filed by [Buyers].

[Buyers] took action to move the case to arbitration which request
was ignored by [Sellers. Buyers were] required, therefore, to
replead and had to pay legal fees to do so. [Sellers] again[]
insisted on arbitration [in which Buyers participated]. An award
was entered in [Buyers'] favor and [Sellers] then applied for [a]
trial [de novo].

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J-A09028-23

The conduct of [Sellers] in first requiring that [Buyers] participate
in arbitration, then ignoring the request, then appealing the
decision of the arbitrators was clearly an attempt by [Sellers] to
delay the proceedings and to incur unnecessary legal fees for
[Buyers]. The [trial] court finds [Sellers] had no basis for their
conduct and that said conduct was dilatory, obdurate[,] and
vexatious[. T]herefore, [the trial court awards] attorney's fees,
in the amount of $11,508.93.

Trial Court Opinion, 6/29/21, at 6-7 (extraneous capitalization omitted).

A review of the record demonstrates that contained in the “Wherefore”

clause of Buyers’ complaint and their amended complaint was a

blanket-request for, inter alia, attorney’s fees. In so requesting, Buyers did

not set forth the basis for their request. As discussed supra, Sellers filed a

preliminary objection to the original complaint on the ground that the matter

should first be submitted to arbitration, which the trial court sustained.18 On

____________________________________________

18 The Agreement of Sale contained the following clause detailing the
agreement between the parties that all disputes would be submitted to
mediation:

Buyer and Seller will submit all disputes or claims that arise from
this Agreement, including disputes and claims over deposit
monies, to mediation. Mediation will be conducted in accordance
with the Rules and Procedures of the Home Sellers/Home Buyers
Dispute Resolution System, unless it is not available, in which case
Buyer and Seller will mediate according to the terms of the
mediation system offered and endorsed by the local Association
of Realtors. Mediation fees, contained in the mediator’s fee
schedule, will be divided equally among the parties and will be
paid before the mediation conference. This mediation process
must be concluded before any party to the dispute may initiate
legal proceedings in any courtroom, with the exception of filing a
summons if it is necessary to stop any statute of limitations from
expiring. Any agreement reached through mediation and signed

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J-A09028-23

June 6, 2017, Buyers submitted a request to the Pennsylvania Association of

Realtors to initiate mediation. Buyers’ Exhibit I. On June 27, 2017, the

Pennsylvania Association of Realtors directed a letter to Buyers that stated, in

pertinent part, as follows:

Per the procedure of the Dispute Resolution System[,] the
Pennsylvania Association of Realtors [] notified [Sellers] of your
request to initiate mediation.

We have not received any correspondence from [Sellers]
indicating their interest in participation of mediation.

Buyers’ Exhibit J. Thereafter, Buyers filed an amended complaint, stating,

inter alia, that Sellers “failed to avail themselves of the opportunity to

mediate, making this matter ripe for civil action.” Amended Complaint,

7/31/17, at ¶18. Sellers filed preliminary objections to the amended

complaint, arguing that the amended complaint was filed without Sellers’

consent or leave of court and that arbitration of the matter was still pending.

The trial court subsequently sustained the preliminary objections and directed

that the parties summit the matter to arbitration. On September 11, 2019, a

panel of arbitrators entered an award in favor of Buyers and against Sellers,

which Sellers subsequently appealed.

____________________________________________

by the parties will be binding. Any agreement to mediate disputes
or claims arising from this Agreement will survive settlement.

Buyers’ Exhibit M at ¶27.

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J-A09028-23

At trial, the following dialogue occurred relative to the introduction of

Buyers’ Exhibit L, a schedule of the attorney’s fees that were incurred:

[Buyers’ Counsel:] On the issues of fraud and [RESDL], we
are going to be seeking attorney’s fees.

Our argument, Judge, is that we did resist
mediation and arbitration, which is
reflected in the file; [] that was a matter
of several conferences and arguments,
that the [trial] court ultimately said you
do have to go to mediation or arbitration.
I want to show that we took all of the
steps to do that, that [Sellers] then did
not avail [themselves] of that.

And so to the extent they are going to
argue a mitigation of damages because
time has [passed], we didn’t mitigate our
damages. We are going to be arguing
delay was on their side, and I am going to
be presenting my attorney’s fees.

And so a portion of those attorney’s
fees would involve the fact that we
resisted [arbitration but] did it
anyway. They said they didn’t – they
didn’t avail themselves of that. The [trial]
court then sent us to arbitration[.]

And then I would also offer that they were
the ones who appealed the arbitration and
brought us here today. All of that goes to
them increasing attorney’s fees.

[Sellers’ Counsel:] Your Honor, you found that the
[Agreement of Sale] required arbitration.
I am not sure how it is relevant. It was a
condition in the contract. The [trial] court
enforced that.

[Buyers’ Counsel:] I think – I think that is exactly right. I am
not saying – I am not taking fault with
what the [trial] court did. I am saying we

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J-A09028-23

then attempted to do the mediation and
[Sellers] did not avail [themselves] of
that.

[Trial Court:] I will allow [Buyers’ Exhibit L – Schedule
of Attorney’s Fees to be admitted] for that
purpose.

N.T., 10/26/20, at 105-106 (extraneous capitalization omitted; emphasis

added). The schedule of attorney’s fees revealed that, between June 2, 2016,

and July 28, 2020, Buyers incurred $11,508.93 in legal fees.

Upon review, we discern that the trial court abused its discretion in

awarding attorney’s fees. Although counsel for Buyers indicated that they

would be seeking attorney’s fees, a motion for attorney’s fees was never filed.

When a schedule of attorney’s fees was introduced at trial, counsel for Sellers

disputed Buyers’ position that Sellers failed to avail themselves of the

arbitration, asserting that the Agreement of Sale required arbitration and the

trial court ordered the parties to participate in arbitration. Buyers concede

that they resisted arbitration and, instead, choose to file a civil complaint.

After the trial court sustained preliminary objections based on the need to

submit the matter to arbitration, Buyers made a request to initiate arbitration.

Twenty-one days after the request was made to initiate arbitration, the

Pennsylvania Association of Realtors discontinued the request to initiate

arbitration based upon Sellers’ failure to respond. It is unclear from this

correspondence the steps the Association took to engage Sellers before

discontinuing the arbitration process. Thereafter, Buyers filed an amended

complaint without Sellers’ consent or leave of court.

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J-A09028-23

The trial court found that “[t]he conduct of [Sellers] in first requiring

that [Buyers] participate in arbitration, then ignoring the request, then

appealing the decision of the arbitrators was clearly an attempt by [Sellers]

to delay the proceedings and to incur unnecessary legal fees for [Buyers]”

amounted to dilatory, obdurate, and vexatious conduct. The dialogue

between counsel at trial (see N.T., 10/26/20, at 105-106) indicates factual

disputes regarding the cause of the delays to bring this matter first to

arbitration and then, ultimately, to trial. For example, Buyers first indicated

that they resisted arbitration and incurred legal fees due to that resistance,

and then argued Sellers did not avail themselves of arbitration and that they

incurred legal fees as a result of Sellers’ resistance. Because factual disputes

existed, the trial court erred in not conducting an evidentiary hearing before

determining whether an award of attorney’s fees was established under

Section 2503(7). Moreover, in awarding attorney’s fees, the trial court

awarded the total cost of legal fees incurred by Buyers from the inception of

the case through July 2020. Counsel for Buyers conceded that some of those

costs were due to Buyers’ resistance to arbitration. As such, the trial court

erred in failing to determine which portion of these fees may be attributable

to Sellers’ dilatory, obdurate, and vexatious conduct, if any. Therefore, we

are constrained to remand this case in order that the trial court, upon the

filing of a motion for attorney’s fees, may conduct an evidentiary hearing to

address such a request.

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J-A09028-23

In sum, we find that the trial court erred as a matter of law and abused

its discretion in entering judgment in favor of Buyers on the causes of action

for breach of contract and fraud. We discern no error or abuse of discretion

in the trial court’s verdict in favor of Buyers on the RESDL cause of action.

Because the trial court awarded the same judgment, $38,370.94, upon finding

in favor of Buyers on each cause of action, we affirm the judgment in the

amount of $38,370.94 based upon the RESDL violation. We vacate a portion

of the judgment in the amount of $11,508.93, awarded for attorney’s fees,

and remand the case for further proceedings in accordance with this opinion.

Judgment in the amount of $38,370.94 affirmed. Judgment in the

amount of $11,508.93 vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq.
Prothonotary

Date: 11/01/2023

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