# Kircher v. Henry

> District Court, M.D. Pennsylvania · April 29, 2021

URL: https://www.frixlaw.com/law-library/cases/10410323

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** April 29, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

DANIEL KIRCHER, et al.,

Plaintiffs, CIVIL ACTION NO. 3:20-cv-02033

v. (SAPORITO, M.J.)

CATHERINE HENRY,

Defendant.

MEMORANDUM
This is a diversity action by the plaintiffs, Daniel Kircher and
Doreen Heluk, against the defendant, Catherine Henry, for breach of an
agreement for the sale of real estate seeking specific performance. This
action was commenced by the filing of a complaint in the Court of
Common Pleas of Wayne County, Pennsylvania, on October 5, 2020.
Thereafter, the defendant timely removed the case to this court. (Doc. 1.)
This matter was assigned to the undersigned United States magistrate
judge upon consent of the parties. (Doc. 14.) The defendant filed a motion
to dismiss the complaint on the basis that the agreement for sale of real
estate is void and unenforceable because the contract was not provided
to the defendant’s agent named under a power of attorney. (Doc. 3.) The
parties have briefed the motion and it is ripe for disposition. (Doc. 5; Doc.

7; Doc. 8.)
For the reasons set forth below we will deny the motion.
I. Statement of Facts

The complaint alleges that the defendant is the owner of real
property located at 1345 Cochecton Turnpike, Tyler Hill, Wayne County,
Pennsylvania (the “Property”). On July 21, 2020, the parties entered into

an agreement for the sale of the Property for the purchase price of
$145,000. The agreement was amended on August 12, 2020, to reflect a
reduction in the purchase price to $120,000. The plaintiffs allege that

they tendered the agreed upon consideration to the defendant and the
plaintiffs have demanded that the defendant perform under the terms of
the agreement of sale and the amendment thereto. Further, the plaintiffs

have alleged that the Property is “unique,” and thus the plaintiffs have
no adequate remedy at law. They are requesting that the court direct the
defendant’s specific performance under the agreement.

In her brief in support of the motion, the defendant maintains that
on July 7, 2020, she executed a power of attorney naming her sister,

Dimitria Bineares, as her agent under the power of attorney. The
defendant contends that the existence of a power of attorney, although

not conclusive of incapacity, puts the parties on notice to make further
inquiry and make a determination of mental capacity, citing Cardinal v.
Kindred Health Care, Inc., 155 A.3d 46, 52 (Pa. Super. Ct. 2017). The

defendant contends that, despite her challenges with reasoning and
cognitive functions, the plaintiffs continued to press her to sign the
agreement of sale. Finally, the defendant argues that the complaint is

deficient because it does not allege that the defendant had the mental
capacity to enter into the agreement.
II. Legal Standards

Rule 12 (b)(6) of the Federal Rules of Civil Procedure authorizes a
defendant to move to dismiss for “failure to state a claim upon which
relief is granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 12(b)(6), a motion

to dismiss may be granted only if, accepting all well-pleaded allegations
in the complaint as true and viewing them in the light most favorable to
the plaintiff, a court finds the plaintiff’s claims lack facial plausibility.”

Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although
the Court must accept the fact allegations in the complaint as true, it is
not compelled to accept “unsupported conclusions and unwarranted

inferences, or a legal conclusion couched as a factual allegation.” Morrow
v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v.
McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Under Rule12(b)(6), the

defendant has the burden of showing that no claim has been stated. Kehr
Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991);
Johnsrud v. Carter, 620 F.2d 29, 32-33 (3d Cir. 1980); Holocheck v.

Luzerne County Head Start, Inc., 385 F. Supp. 2d 491, 495 (M.D. Pa.
2005). In deciding the motion, the court may consider the facts alleged
on the face of the complaint, as well as “documents incorporated into the

complaint by reference, and matters of which a court may take judicial
notice.” Tellab, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007).

III. Discussion

“The Statute of Frauds instructs that a purported transfer of an
ownership interest in real property is not enforceable unless evidenced
in writing and signed by the party(ies) granting the interest.” Long v.
Brown, 582 A.2d 359, 361 (Pa. Super. Ct. 1990) (citing 33 P.S. § 1). “A

writing required by the Statute of Frauds need only include an adequate
description of the property, a recital of the consideration[,] and the

signature of the party to be charged.” Hessenthaler v. Farzin, 564 A.2d
990, 994 (Pa. Super. Ct. 1989). The complaint asserts a cause of action
for breach of contract for the sale of real estate. The elements necessary

to plead a breach of contract claim under Pennsylvania law are: “(1) the
existence of a contract, including its essential terms[;] (2) a breach of the
contract; and, (3) resultant damages.” Meyer, Darragh, Buckler, Bebenek

& Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C., 137 A.3d 1247,
1258 (Pa. 2016) (citing J.F. Walker Co. v. Excalibur Oil Grp. Inc., 792
A.2d 1269, 1272 (Pa. Super. Ct. 2002)).

The agreement of sale and the addendum are attached to the
complaint as exhibits. Both documents reflect the existence of a contract
for the sale of the Property, including the purchase price, contingencies,

and a closing date. Relying on Cardinal, the defendant argues that the
mere existence of the execution of the power of attorney in favor of her
sister “puts the parties on notice to make further inquiry and make a

determination of mental capacity.” (Doc. 5, at 4.) However, that is not
what the Cardinal court held. Rather, it stated:
The mere existence of a power of attorney can in
no way be construed as indicia of incapacity on the
part of the principal. Powers of attorney are
executed for many and various reasons, including
simple convenience, and are a routine component
of the estate planning process. The [trial] court’s
suggestion that Decedent’s power of attorney
evidenced his incapacity is wholly unsupported by
our case law, based on flawed reasoning, and not
supported by any facts of record in this matter.

Cardinal, 155 A.3d at 51. In addition, we note that the power of attorney
attached to the defendant’s brief was notarized on July 7, 2020, a mere
two weeks before execution of the agreement of sale. Are we to conclude
that the defendant had the mental capacity to know and understand the
legal import of the power of attorney on July 7, 2020, but yet she lacked
the capacity to understand the terms of the agreement of sale two weeks
later? That conclusion would be a leap at this procedural point in the
litigation and those issues are better left to a determination after a more
complete factual record is established. Without more, and at this stage
of the litigation, we are also unpersuaded by the defendant’s argument

that the “barely legible not controlled” appearance of the defendant’s
signature on the documents somehow evidences signs of a lack of capacity
to enter into a contract. (See Doc. 5, at 5.)

Thus, accepting the plaintiffs’ factual allegations in the complaint
as true, as we must, we find that the complaint adequately sets forth a
cause of action for breach of contract. The defendant’s motion to dismiss

will be denied.
An appropriate order follows.

s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
U.S. Magistrate Judge

Dated: April 29, 2021

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10410323. Public record. Not legal advice.