Opinion

Nicholas, K. v. McDonald, C.

Court: Superior Court of Pennsylvania
Filed: Feb 7, 2023
Status: Unpublished
On the bench: Lazarus, J.
Cited by: 0 cases
Authority: More cited than 22.5%

stating the RESDL “applies ‘to all residential real estate transfers’ except for certain types of transfers”

How later courts described this case

stating the RESDL “applies ‘to all residential real estate transfers’ except for certain types of transfers”
finding that “[t]here is no question that the purchase or lease of a home, condominium, or apartment for residential purposes comes under the protections of the UTPCPL” even when the sellers were individuals
superseded by statute on other grounds in Milliken v. Jacono, 60 A.3d 133 (Pa. Super. 2012)

Written by the judges who cited it.

The opinion

J-A28018-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KATHLEEN NICHOLAS-GOULD : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

CHARLES P. MCDONALD, JR. AND :

SUSANNE MCDONALD :

: No. 1009 EDA 2022

Appellants :

Appeal from the Judgment Entered March 14, 2022

In the Court of Common Pleas of Bucks County Civil Division at No(s):

2018-06816

BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.

MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 7, 2023

Charles P. McDonald, Jr., and Susanne McDonald (h/w) (collectively, the

McDonalds/Sellers) appeal from the judgment, entered on the non-jury

verdict in the Court of Common Pleas of Bucks County, in favor of Appellee

Kathleen Nicholas-Gould (Buyer) in the amount of $69,459.30, in this

residential real estate case. After careful review, we affirm on the basis of the

opinions authored by the Honorable Robert O. Baldi.

On March 11, 2018, the parties executed an agreement of sale, in the

amount of $480,000.00, for property (Property) located at 3912 Street Road1

in Buckingham Township, Bucks County. Sellers had purchased the Property

in November 2005 and made extensive improvements to it, including

____________________________________________

1 The home was approximately 50 years old at the time of the sale.

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removing a lower portion of the wall in the corner bedroom in 2013, as well

as converting the garage into a family room in or around 2007.

On February 22, 2018, Sellers executed a Real Estate Disclosure

Statement (Disclosure Statement) that included, among other things, the

following averments:

• Sellers “were not aware of any past or present movement,

shifting, deterioration, or other problems with walls,

foundations, or other structural components[;]”

• Sellers “were not aware of any past of present problems

with driveways, walkways, patios, or retaining walls on the

property[;]”

• Sellers “were not aware of any past or present water

infiltration in the house or other structures, other than the

roof, basement[,] or crawl spaces.”

Seller’s Property Disclosure Statement, 2/22/18, at ¶¶ 7(A), (B), & (C). On

March 11, 2018, Buyer reviewed the Disclosure Statement and testified that

based on the Disclosure Statement she believed that there were no structural

problems with the Property. N.T. Non-Jury Trial, 10/6/20, at 34. Finally,

Buyer testified that she relied upon the representations in the Disclosure

Statement when she decided to purchase the Property. Id. at 32.

Buyer hired a company to inspect the Property prior to closing. The

inspector issued a report, dated March 16, 2018, listing items in/on the

Property that needed corrective work. In particular, the inspection report

noted that there were material defects with regard to the roof drainage system

(a defective rain gutter/downspout) and the chimney (placement of right roof

framing member). See Inspection Report by Steve Maurer of Maurer

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Inspections, LLC, 3/16/18, at 4.2 The inspection report also noted that

everything “appeared functional” in the interior of the Property, except for

certain steps, stairways, balconies, and railings, which Mr. McDonald

subsequently fixed. The remaining problem items were either addressed or

waived by the parties prior to settlement.3

The parties made settlement on the Property on April 30, 2018.4

Following settlement, Buyer “discovered that the Property was riddled with

numerous undisclosed material defects that were neither readily observable

nor discoverable by [Buyer’s] inspector,” including, but not limited to, a

deteriorated and failing front wall on the main level, basement and crawlspace

flooding, cracked floor tiles in the family room, deteriorating masonry on the

outside front of the home, and a failing split-rail backyard fence. Complaint,

11/26/18, at ¶¶ 23-45. In particular, Buyer discovered that the front wall of

one of the bedrooms was bulging and that water was seeping through the

paint. When Buyer cut open a portion of that wall, she found that the studs

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2 The inspection report also noted that further evaluation by a qualified

chimney sweep was required to assess the condition of the chimney’s flues

and vents as the interior chimney and furnace flues could not be inspected

because that was “beyond the scope of a home inspector.” Id.

3A $3,500.00 adjustment in favor of Buyer was applied to the final purchase

price of the Property to account for the cost to repair some of the problems

noted in the inspection report.

4 The parties stipulated that the closing date of the sale was April 30, 2018.

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were so deteriorated from water damage that new studs had been “sistered”5

to the old studs to prevent the wall from completely falling down. In addition,

Buyer noticed that pieces of wood and insulation inside the wall were moist

and contained dark spots/mold, that the drywall or plasterboard was

destroyed, and that the masonry was crumbling.

On November 26, 2018, Buyer filed a complaint against Sellers alleging

violations of the Real Estate Seller Disclosure Act (RESDL)6 and the Unfair

Trade Practices and Consumer Protection Act (UTPCPL).7 In her complaint,

Buyer requested treble damages, as well as attorneys’ fees and costs. Sellers

filed an answer, new matter, and counterclaim asserting breach of contract.8

Following a three-day non-jury trial, held in October 2020,9 Judge Baldi

found in favor of Buyer, concluding that Sellers’ failure to disclose material

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5 “A sister stud is a secondary stud that is installed alongside an existing stud.

It is usually used to reinforce a stud that has been damaged or is bowed in a

manner that compromises its load-bearing capacity.”

https://knowledgeburrow.com/what-does-sistering-mean-in-

construction/#:~:text=What%20does%20Sistering%20mean%20in%20con

struction%3F%20A%20sister,in%20a%20manner%20that%20compromises

%20its%20load-bearing%20capacity. (last visited 12/28/23).

6 68 Pa.C.S.A. §§ 7301-14.

7 73 P.S. § 201-1, et seq.

8 The parties jointly stipulated to the following: Buyer will withdraw a claim

for negligence and Sellers will withdraw their counterclaims for loss of the

bargain and for attorneys’ fees.

9On the second day of trial, Mrs. McDonald testified that she adopted her

husband’s testimony as her own. N.T. Non-Jury Trial, 10/7/20, at 99.

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defects—specifically, moisture damage and deterioration of the front wall of

the Property that extended from a corner bedroom to the family room—

constituted a violation of the RESDL and the UTPCPL.10 The trial judge

awarded Buyer $50,940.00 in compensatory damages11 to cover the costs to

repair the deteriorating walls.

On July 20, 2021, Sellers filed a post-trial motion, which the court

subsequently denied. Buyer filed a post-trial petition seeking attorneys’ fees

and costs under the UTPCPL;12 Sellers filed an answer opposing the petition.

On March 7, 2022, the trial court granted Buyer’s petition, awarding Buyer

$14,838.50 in attorneys’ fees and $3,680.80 in costs. See 73 P.S. § 201.9.2

(statute authorizing recovery of “reasonable” attorneys’ fees and costs for

violation of UTPCPL).

____________________________________________

10 The court specifically found that Sellers reasonably believed that their

installation of a second sump pump corrected any significant flooding issues

in the Property’s basement and crawl space and, thus, Buyer could not recover

for Sellers’ alleged failure to disclose this issue. The court also found that

Buyer could not recover for alleged flooding in the yard of the Property where

no evidence was presented at trial to show that the flooding had a significant

impact on the value of the Property or that it involved an unreasonable risk to

people on the Property. Finally, the court found that Buyer could not recover

on the failing split-rail fence or deteriorating masonry on the front of the

home. See Trial Court Opinion, 7/1/21, at 21.

11Although permissible under the UTPCPL, the court declined to award treble

damages.

12 The parties stipulated that any request that Buyers may have for attorneys’

fees under the UTPCPL would be heard via post-trial motions without the need

for expert testimony as it relates to the reasonableness of attorney rates.

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Sellers filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. Sellers present

the following issues for our consideration:

(1) Whether the [trial c]ourt improperly relied on testimony that

the parties and the [trial c]ourt stipulated could not be used

to establish liability[.13]

(2) Whether there was sufficient competent evidence

introduced at trial that the [Sellers] were aware of any

material defects in the front bedroom wall[.]

(3) Whether there was sufficient competent evidence that the

[Sellers’] statement that they were not aware of any

material defects in the front bedroom wall were false,

deceptive, and misleading[.]

(4) Whether there was sufficient competent evidence to support

actual damages in the amount of $50,940.00[.]

(5) Whether the [trial c]ourt erred in applying the UTPCPL to

this case because the [Sellers] are individual consumers

that were [not] and are not in the business of selling homes.

Appellants’ Brief, at 7.

Upon appeal of a non-jury trial verdict, an appellate court

considers the evidence in a light most favorable to the verdict

winner and will reverse the trial court only if its findings of fact

lack the support of competent evidence or its findings are

premised on an error of law. When an appellate court reviews the

findings of the trial judge, the evidence is viewed in the light most

favorable to the victorious party below and all evidence and proper

inferences favorable to that party must be taken as true and all

unfavorable inferences rejected. The court's findings are

especially binding on appeal, where they are based upon the

credibility of the witnesses, unless it appears that the court abused

its discretion or that the court’s findings lack evidentiary support

____________________________________________

13Sellers did not preserve this issue in post-trial motions. Thus, it is waived

on appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are

waived.”).

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or that the court capriciously disbelieved the evidence. It is

inappropriate for an appellate court to make factual

determinations in the face of conflicting evidence.

Phelps v. Caperoon, 190 A.3d 1230, 1243 (Pa. Super. 2018) (citation

omitted).

With regard to issues two and four, Buyer’s expert witness concluded

that water infiltration, not termites as alleged by Sellers, was the cause of

damage to the Property’s walls and that the way to remedy the damage was

to reframe the walls and entirely replace the masonry. See N.T. 10/7/20, at

12-15, id., 10/6/20, at 221-22 (expert testifying sill plate, joists of house,

and studding in front walls were “rotted”); id. at 22-23 (expert testifying no

vapor barrier in front walls to keep moisture from seeping through exterior

stone). Buyer’s contractor testified that a “reasonable and appropriate” cost

to reframe the front walls would be $50,940.00 ($15,260.00 (bedrooms walls)

and $35,680.00 (family room/garage wall)). Id., 10/7/20, at 20-21; see

Plaintiff’s Exhibit 15, at 1-2.

With regard to issue number three, Mr. McDonald admitted at trial that,

in 2013, he opened up the front wall to replace the lower portion of drywall

and, in the process, “sistered” new studs to the old studs. Id., 10/7/20 at

67-68; id. at 85 (Seller testifying inside corner bedroom wall, “There was a

stud that was a little chewed up[.]”). Mr. McDonald also testified that the

drywall inside the wall was “cracked and falling down.” Id., 10/8/20, at 72-

73. Finally, Mr. McDonald testified that when the Property’s garage was

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converted to a family room, he observed the week-long construction process

“about three or four times.” Id., 10/7/20, at 78.

With regard to Sellers’ final issue, we note that the UTPCPL provides for

a private cause of action.

The UTPCPL is Pennsylvania’s consumer protection law, which

serves the purpose of protecting the public from unfair or

deceptive business practices. DeArmitt [v. N.Y. Life Ins. Co.,

73 A.3d 578, 587 (Pa. Super. 2013)]. The UTPCPL explicitly

authorizes a private cause of action for anyone who purchases

goods primarily for personal, family, or household purposes and

“suffers any ascertainable loss of money or property” as a result

of any person employing an unlawful method, act, or practice. 73

P.S. §201-9.2(a).

In order to bring a private cause of action under the UTPCPL, “a

plaintiff must show that he justifiably relied on the defendant’s

wrongful conduct or representation and that he suffered harm as

a result of that reliance.” Yocca v. Pittsburgh Steelers Sports,

Inc., [] 854 A.2d 425, 438 (Pa. 2004) (emphasis added). Strict

technical privity is not required to bring a cause of action under

the UTPCPL. Valley Forge Towers Smith Condominium v.

Ron-Ike Foam Insulators, Inc., [] 574 A.2d 641, 647 (Pa.

Super. 1990).

Zajick v. Cutler Grp., Inc., 169 A.3d 677, 680 (Pa. Super. 2017).14

____________________________________________

14 Specifically, section 201-3 of the UTPCPL creates a private cause of action

in the following circumstances:

(a) 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 by section 3 of this act,

may bring a private action to recover actual damages

or one hundred dollars ($ 100), whichever is greater. The

court may, in its discretion, award up to three times the

(Footnote Continued Next Page)

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After examining the parties’ briefs, the issues on appeal, and relevant

statutory and case law, we affirm the court’s judgment. In doing so, we rely

upon the thorough and well-written opinions authored by Judge Baldi. See

Pa.R.A.P. 1925(a) Opinion, 6/10/22, at 5-10; Trial Court Opinion, 7/1/21.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/7/2023

____________________________________________

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) (emphasis added). Under section 3 of the UTPCPL

“unlawful acts or practices” are defined as “unfair methods of competition and

unfair or deceptive acts of practices in the context of any trade or commerce

as defined by subclauses (i) through (xxi) of clause (4) of section 2 of this act

and regulations promulgated under section 3.1 of this act[.]” Id. at § 201-3.

The UTPCPL prohibits “engaging in any other fraudulent or deceptive conduct

which creates a likelihood of confusion or misunderstanding.” Id. at 201-

2(4)(xxi). See Gregg v. Ameriprise Fin., Inc., 245 A.3d 637 (Pa. 2021)

(UTPCPL’s 1997 amendment created “catch all” provision that expanded its

scope to cover not just “fraudulent” but also “deceptive” conduct; statute

requires neither intent to deceive nor negligence with regard to effect of

misrepresentation).

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the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents. Circulated AS

2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED 01/12/2023 02:01 Page

FOLLOWS., PM 1

$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of

IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA

CIVIL ACTION — LAW

KATHLEEN NICHOLS-GOULD

Plaintiff,

Vs. : No. 2018-06816

CHARLES and SUSANNE MCDONALD (h/w) :

Defendants. :

OPINION

I. INTRODUCTION

Charles and Susanne McDonald (hereinafter, “Appellants”! filed a Notice of Appeal from

this Court’s Decision and Order, dated July 1, 2021, in which the undersigned found in favor of

Kathleen Nichols-Gould (hereinafter, “Appellee’’) and against Appellants after a three-day nonjury

trial before the undersigned. This Court’s Opinion is being filed as required by Pennsylvania Rule

Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee

of Appellate Procedure 1925(a) and in compliance therewith. For the reasons stated below, the

undersigned respectfully suggests the instant Appeal should be denied.

II. FACTUAL AND PROCEDURAL BACKGROUND

Appellants purchased the property located at 3912 Street Road in Buckingham Township,

Bucks County, Pennsylvania (hereinafter, “the Property”) in October 2005. Notes of Testimony

(“N.T.”) 10/6/2020, 31:20-22; 160:13-15; N.T. 10/8/2020, 15:15-17; P-1 § 2(C); D-25 J 2(C)?

Appellants spent thousands of dollars renovating the Property during their ownership, making

extensive improvements, some of which altered or changed the structural integrity of the house.

N.T. 10/7/2020, 42:1-21; 43:14 — 44:9; N.T. 10/8/2020, 53:13-18; P-1 J 8; D-25 § 8. Among the

repairs performed by Appellants was the removal of the lower portion of the wall in the corner

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' Mrs. McDonald adopted the testimony of Mr. McDonald at trial. N.T. 10/7/2020, 99:16-18.

? p- refers to Plaintiff's Trial Exhibits and D- refers to Defendants’ Trial vane

:B. HtIt 8 the responsibili

ponsibility of

all Bartles to

partiés of the notify all rested

content of thi

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$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of ,

bedroom in 2013. N.T. 10/7/2020, 67:11-25; 68:1-19; 87:1-20. Appellants admitted that they

noticed deterioration of the studs and gypsum board inside the wall at that time. N.T. 10/7/2020,

67:11-25; 68:1-19; 87:1-20.

Appellee offered to purchase Appellants’ home for $480,000.00 after they listed it for sale

in 2018. N.T. 10/6/2020, 39:14-15; N.T. 10/7/2020, 40:15 — 41:6; N.T. 10/8/2020, 70:23 — 71:3;

P-2. As part of the parties’ real estate transaction, Appellants prepared a Real Estate Seller’s

Disclosure Statement (“Disclosure Statement”). N.T. 10/6/2020, 31:11-16; P-1; D-25. In

Paragraph 7 of the Disclosure Statement, Appellants indicated that they “were not aware of any

past or present movement, shifting, deterioration, or other problems with walls, foundations, or

other structural components .. . ” P-1 § 7(A)-(C); D-25 § 7(A)-(C).

After settlement, Appellee noticed several significant problems with the Property,

including a deteriorated and failing front wall on the main level. N.T. 10/6/2020, 70:5 — 89:6; P-9

Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee

to P-11. In light of the issues that Appellee observed on the Property, and the repairs that were

necessary to correct those issues, Appellee filed a Complaint against Appellants alleging violations

of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) and the

Pennsylvania Real Estate Sellers’ Disclosure Law (“RESDL”)‘.

Subsequently, a three-day bench trial was held before the undersigned from October 6,

2020, through October 8, 2020, after which time the undersigned issued a Memorandum Decision

and Order finding in favor of Appellee and against Appellants on Appellee’s claims. The Court’s

25-page Decision was issued July 1, 2021. It contained 61 Findings of Fact, a substantial number

of which were stipulated to by the parties. The Decision outlines and explains the Court’s

E-Filed by: Elizabeth Schecter

373 PS. §§ 201-1 et seg.

4 68 Pa.C.S. §§ 7311 et seq.

$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of

reasoning for the award that was entered. The parties stipulated at trial that fee petitions would be

presented via post-trial submissions. N.T. 10/7/2020, 8:6-12. On March 7, 2022, the undersigned

issued a Memorandum Decision and Order awarding $14,838.50 in attorney’s fees and $3,680.80

in costs to Appellee. Appellants filed their Notice of Appeal on April 12, 2022, and this Court

directed Appellants to file a Statement of Matters Complained of On Appeal on April 13, 2022.

Il. STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

On May 4, 2022, Appellants filed their Concise Statement of Matters Complained of On

Appeal, which are set forth verbatim below:

1. The Court erred in finding that Plaintiff proved by preponderance of the evidence that

Defendants failed to properly disclose the condition of the front walls.

To the extent the Court found that Defendants were aware of and failed to disclose

moisture in the front walls, the Court erred in finding that Plaintiff proved by a

preponderance of the evidence that the alleged moisture in the front walls predated the

closing and that Defendants were aware of the alleged moisture or alleged condition of

the walls.

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The Court erred in finding that “Based on Mr. McDonald’s replacement of the drywall

in the corner bedroom, these statements were either false, deceptive, or misleading.”

The Court erred by awarding $50,940.00 for the front walls. That figure improperly

included many components that were never present at the property while Defendants

owned it, as well as components that were not damaged/deteriorated when Plaintiff

took ownership. By way of example only, inter alia, the figure improperly included a

new ceiling, even though there was no evidence of any problems with the ceiling; it

improperly included new walls that are not part of the front walls; it improperly

included the installation of a new heating system; it improperly included a “rebuild [of]

electric panel closet;” it improperly included the cost to raise the wall above grade. By

way of further example on, inter alia, although this Court properly found that “The

Plaintiff has not proven the deteriorated masonry on the front of the house is a material

defect for which she can recover,” this Court nonetheless improperly awarded Plaintiff

the costs to remove and replace (with siding) the masonry wall. In short, the Court

improperly found that Defendants were responsible to provide Plaintiff with a home

that is substantially newer and substantially improved over the 50-year-old home that

Defendants’ owned, offered for sale and sold to Plaintiff.

E-Filed by: Elizabeth Schecter

5. The Court erred in awarding Plaintiff attorney fees and costs.

$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of

6. The Court erred in awarding Plaintiff $14,838.50 in fees and $3,680.00 in costs. To the

extent Plaintiff was entitled to any fees or costs, the amounts awarded by the Court are

excessive, not supported by the evidence and not supported by the law.

7. The Court erred in applying the Unfair Trade Practices and Consumer Protection Law

(UTPCPL) to this case because Defendants are individuals that were and are not in the

business of selling homes. Defendants were and are not “vendors” or in the business of

selling anything. Defendants are not in the business of dealing with other consumers.

Indeed, Defendants are typical consumers who were selling their residence like average

people do every day.

8. Even if the UTPCPL is applicable, this Court erred in holding that Defendants violated

the UTPCPL.

9. Evenifthe UTPCPL is applicable, this Court erred in holding that Defendants engaged

in fraudulent and deceptive conduct.

10. Even if the UTPCPL is applicable, this Court erred in holding that Plaintiff may recover

up to three times actual damages.

11. This Court erred in holding that Defendants violated the Real Estate Seller Disclosure

Law.

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IV. DISCUSSION

For ease of discussion, this Court will consolidate and address Appellants’ arguments

pertaining to Appellants’ knowledge of the moisture damage in the front walls first, followed by

the amount of Appellee’s award, and then by the application of the UTPCPL. The Court will

conclude with a discussion of the application of the RESDL.

A. Standard of Review

The Court, sitting as finder of fact in a nonjury trial, “is permitted to accept all, part, or

none of the testimony, and [has the] exclusive province to resolve conflicts in that testimony.”

Haan v. Wells, 103 A.3d 60, 72 (Pa. Super. 2014). As the Pennsylvania Superior Court has stated,

“(the appellate court’s] role in cases arising from non-jury trial

verdicts is to determine whether the findings of the trial court are

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supported by competent evidence and whether the trial court

committed error in any application of the law. The findings of the

trial judge in a non-jury case must be given the same weight and

$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of

effect on appeal as the verdict of a jury, and the findings will not be

disturbed on appeal unless predicated upon errors of law or

unsupported by competent evidence in the record. Furthermore, [the

appellate court’s] standard of review demands that [the court]

consider the evidence in a light most favorable to the verdict winner.

Levitt v. Patrick, 976 A.2d 581, 588-89 (Pa. Super. 2009) (citing Baney v. Eoute, 784 A.2d 132,

135 (Pa. Super. 2001)). Moreover, “[the] award [of] attorneys' fees and costs incurred in bringing

an action are within the discretion of the trial court, and [appellate courts] will not reverse a trial

court's decision on the matter in the absence of an abuse of discretion.” First Pennsylvania v.

National Union, 580 A.2d 799, 803 (Pa. Super. 1990).

B. Appellants’ Knowledge of Moisture Damage in the Front Walls

The Court determined that Appellants were aware of the moisture damage and deterioration

in the front walls when filling out the Disclosure Statement in 2018, yet failed to disclose same,

because Appellants admitted that they opened the wall in the corner bedroom in 2013 and noticed

Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee

deterioration of the studs and gypsum board at that time. N.T. 10/7/2020, 67:11-25; 68:1-19; 87:1-

20. Appellants admitted that the inside of the wall in the corner bedroom appeared similar in 2013

to what Appellee observed in 2018 when she re-opened the same wall. N.T. 10/8/2020, 72:22-25;

73:1-3. This was specifically discussed in the Court’s written Decision entered July 1, 2021, a

copy of which is attached hereto as Exhibit “A” and incorporated herein by reference.

While Appellants attributed the deterioration that they observed solely to termite damage

or age, the experts who presented testimony at trial regarding the corner bedroom all agreed that

there was moisture damage in the walls, including Appellants’ own expert, Herbert Scott. N.T.

10/6/2020, 221:19-25; N.T. 10/7/2020, 22:9-23; 68:7-16; 158:20-25; 159:1. Indeed, Mr. Scott

testified that moisture damage likely preceded any termite damage as termites need moisture to

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survive. N.T. 10/7/2020, 161:3-8; 175:18-24.

$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of

Appellee’s expert, Michael Lohman, testified that the interior of the walls in the corner

bedroom had already begun to rot and become covered in mold when Appellants opened the wall

in 2013. N.T. 10/7/2020, 36:1-4. Mr. Lohman further testified that “[a]nyone can look at black

mold and see that it is obviously black mold” and that “anyone that had general common sense . .

. would [have] remove[d] any of the rotted wood that had mold on it” rather than sistering the studs

and sealing off the wall. N.T. 10/7/2020, 37:2-14.

This Court found that Mr. Lohman’s testimony that the moisture damage and deterioration

in the corner bedroom wall was obvious to Appellants in 2013 was credible, and that Appellants’

testimony to the contrary was implausible. Accordingly, Appellants’ failure to disclose the

moisture damage and deterioration in the corner bedroom wall on the Disclosure Sheet that they

prepared and presented to Appellee in 2018 was false, deceptive, and misleading, and in violation

of the UTPCPL and RESDL, as discussed in Sections IV(D) and IV(E) below.

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C. Amount of Appellee’s Award

The Court, sitting as finder of fact in this nonjury trial, accepted the testimony of Appellee’s

witness, Thomas Gavin, that there was deterioration on the interior of front walls, including rotting

studs, moist insulation, and deteriorating gypsum board, which had a significant adverse impact

on the value of the Property, evidenced by the cost of replacing such walls. Mr. Lohman confirmed

the reasonableness of the cost of the repairs performed by Mr. Gavin at trial. N.T. 10/7/2020, 20:13

— 21:12. The Court’s award of $50,940.00 for the repairs that were necessary were based upon Mr.

Gavin’s repair estimates. This was also explained in the Court’s Decision, a copy of which is

attached hereto.

The Court accepted the witnesses’ testimony and did not award all costs listed in the

E-Filed by: Elizabeth Schecter

Estimate, but rather focused on line items. It should be noted that the Court had the discretion to

$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of

triple the damages but chose not to do so. Any argument, or suggestion that a lesser amount of

damages should have been awarded can at best be characterized as “ungrateful”. Appellants failed

to disclose damage in the walls. The award entered is remedial and should cover all of Appellee’s

costs associated with Appellants’ wrongdoing. Under the law, to ensure that all reasonable costs

are awarded, the Court is authorized to issue three times the amount of the damage. The award

could have been $150,000.00.

Reasonable attorneys’ fees are recoverable for actions brought under the UTPCPL. See

Boehm v. Riversource Life Ins. Co., 117 A.3d 308, 335 (Pa. Super. 2015); 73 P.S. § 201-9.2(a).

In determining an appropriate attorneys’ fee award, courts are instructed to consider:

“(1) [t]he time and labor required, the novelty and difficulty of the

questions involved and the skill requisite properly to conduct the

case; (2) [t]he customary charges of the members of the bar for

similar services; (3) [t]he amount involved in the controversy and

the benefits resulting to the clients from the services; and (4) [t]he

Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee

contingency or certainty of the compensation.”

Boehm, 117 A.3d at 335 (citations omitted). Moreover, “there should be ‘a sense of proportionality

between an award of damages [under the UTPCPL] and an award of attorney's fees,’ and whether

plaintiff has pursued other theories of recovery in addition to a UTPCPL claim ‘should [be] given

consideration’ in arriving at an appropriate award of fees.” Id. (citing Neal v. Bavarian Motors,

882 A.2d 1022, 1031 (Pa. Super. 2005)). Other costs incurred by UTPCPL claimants are also

recoverable under the plain language of the statute. Fazio v. Guardian Life Ins. Co. of Am., 62

A.3d 396, 402 (Pa. Super. 2012) (citing 73 P.S. § 201-9.2(a)).

As discussed in Section IV(D) below, the UTPCPL applies to Appellants’ conduct in this

case. The undersigned issued a detailed Memorandum Decision and Order laying out its reasoning

E-Filed by: Elizabeth Schecter

for the award of Appellee’s attorney’s fees and costs on March 7, 2022, a copy of which is attached

hereto as Exhibit “B”. Appellants failed to articulate any support for their contention that the

$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of

amount awarded to Appellee in that Order was excessive, not supported by the evidence and not

supported by the law. Therefore, it is respectfully submitted that the amount of fees awarded by

the undersigned to Appellee was not an abuse of discretion and should be upheld on appeal.

D. Application of the VTPCPL

The UTPCPL provides:

“[a]ny 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 by section 3 of this act, may bring a private action

to recover actual damages or one hundred dollars ($100), whichever

is greater.”

73 P.S. § 201-9.2(a). Among the unfair or deceptive acts or practices enumerated in the UTPCPL

is a catchall provision which prohibits “[eJngaging in any other fraudulent or deceptive conduct

which creates a likelihood of confusion or misunderstanding.” 73 P.S. § 201-2(4)(xxi). Courts have

Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee

recognized that the UTPCPL is a remedial statute which is designed to protect consumers from

fraud and unfair or deceptive business practices. Boehm, 117 A.3d at 322. Thus, the statute is to

be liberally construed, and the preponderance of the evidence standard applies to claims arising

thereunder. Id.

The clear and unambiguous language of the UTPCPL provides that “the court may, it its

discretion, award up to three times the actual damages sustained.” Schwartz v. Rockey, 932 A.2d

885, 890 (Pa. 2007); Metz v. Quaker Highlands, 714 A.2d 447, 450 (Pa. Super. 1998); 73 P.S. §

201-9.2(a). Moreover, the Pennsylvania Supreme Court has held that the award of treble damages

under the UTPCPL is “not to be closely constrained by the common-law requirements associated

with the award of punitive damages” but may be “reviewed by the appellate courts for rationality.”

E-Filed by: Elizabeth Schecter

Schwartz, 932 A.2d at 898.

$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of

The UTPCPL applies to residential real estate transactions, even when the seller is an

individual. Growall v. Maietta, 931 A.2d 667, 676 (Pa. Super. 2007) (finding that “[t]here is no

question that the purchase or lease of a home, condominium, or apartment for residential purposes

comes under the protections of the UTPCPL” even when the sellers were individuals) (citing

Valley Forge Towers South Condominium v. Ron-Ike Foam Insulators, Inc., 574 A.2d 641, 645

(Pa. Super. 1990)). Appellants offer no legal support for their contention otherwise.

Based upon the testimony presented at trial, this Court found that Appellants were aware

of the moisture damage and deterioration in the front walls and failed to disclose same on the

Disclosure Statement that Appellants prepared in 2018. Appellants’ conduct was deceptive and

caused Appellee’s confusion or misunderstanding of the extent of repairs that were necessary on

the Property. Accordingly, this Court correctly concluded that Appellants violated the UTPCPL,

awarded damages for same and reasonable fees to Appellee as outlined in Section IV(C) above.

Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee

It should be noted that the Court could have entered treble damages but chose not to do so.

The Court’s calculation of damages was done carefully with the intent to ensure that all repairs

necessitated by the Appellants’ wrongdoing were covered. If there was some specific item that

Appellants wish to challenge, the Court has little sympathy for same, based upon the fact that the

Court chose not to triple the costs of Appellee’s repairs.

E. Application of the RESDL

The RESDL is a remedial statute that was designed to address the very issues presented in

this case. Under the RESDL, sellers are required to disclose all material defects and not to make

any statements that they know are false or misleading. Medlock v. Chilmark Home Insps., LLC,

195 A.3d 277, 289 (Pa. Super. 2018) (citing 68 Pa.C.S.A. § 7308). A material defect is defined as

E-Filed by: Elizabeth Schecter

“[a] problem with a residential real property or any portion of it that would have a significant

$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of

adverse impact on the value of the property or that involves an unreasonable risk to people on the

property[.]” Milliken v. Jacono, 60 A.3d 133, 138 (Pa. Super. 2012) (citing 68 Pa.C.S.A. § 7102

in pertinent part).

As discussed in Section IV(B) above, the Court concluded that Appellants knew about the

moisture damage and deterioration in the corner bedroom wall as early as 2013 and did not disclose

same to Appellee on the Disclosure Sheet that Appellants prepared in 2018. N.T. 10/7/2020, 67:11-

25; 68:1-19; 87:1-20; P-1 4 7(A)-(C); D-25 4 7(A)-(C). Based upon the testimony presented at

trial, this Court also concluded that the moisture damage in the front walls was a material defect

that should have been disclosed.

Mr. Lohman testified that the interior of the front walls was rotting, falling apart, and

covered in black mold, which would have been obvious to Appellants in 2013, and which had a

significant adverse impact on the value of the Property and created an unreasonable risk to

Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee

inhabitants of the Property. N.T. 10/7/2020 at 12:11 — 13:1-10; 19:4-21; 27:1-5; 36:1 — 37:24.

Accordingly, it is respectfully submitted that the Court properly found that Appellants’ failure to

disclose the moisture damage and deterioration in the front wall of the corner bedroom violated

the RESDL.

E-Filed by: Elizabeth Schecter

$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of

CONCLUSION

It is respectfully submitted that each of the alleged errors raised on appeal have been

addressed by this Court, and that this Court did not err in its findings. The undersigned’s Decision

and Order entered on July 1, 2021 properly found in favor of Appellee and against Appellants on

the issues that were raised by Appellants in this Appeal. Thus, the instant Appeal should be denied.

BY THE COURT:

bflefer

pate

COL.

ROBERT 0. Balam

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E-Filed by: Elizabeth Schecter

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IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA

CIVIL DIVISION

KATHLEEN NICHOLS-GOULD,

Plaintiff

y. ) ; 2018-06816

CHARLES P. McDONALD, JR. and

SUSANNE McDONALD,

Defendants

DECISION

The Parties appeared before the undersigned for a trial from October 6, 2020 through

October 8, 2020. This Decision is based upon the evidence, arguments, exhibits, and testimony

presented at trial, along with the submissions of the Parties thereafter. This Court reserves the right

to supplement this Decision with additional facts and legal authority should an appeal be filed.

I. FINDINGS OF FACT |

A. Defendants’ Ownership of the Property

1. The Defendants, Charles P, McDonald, Jr. and Susanne McDonald, purchased property at .

3912 Street Road, in Buckingham Township (the “Property””) in October 2005. Trial Tr.

vol. I, 31:20-22, 160:13-15; Trial Tr. vol. III, 15:15-17; P-1 9 2(C); D-25 ¥ 2(C).'

2. Mrs. McDonald adopted the testimony of Mr. McDonald. Trial Tr. vol. I, 99:16-18.

sextin AC RHHOLO1 CASE: B UDHIBOITED-REDGEBelreeuhiscl

3. The Defendants spent thousands of dollars and countless hours renovating the home during

their ownership, making extensive improvements, some of which altered or changed the

structural integrity of the house—converting the garage to a family room, removing a

E-Filed by: Elizabeth Schecter

s’ trial exhibits.

' References to “P-_” refer to Plaintiff's trial exhibits, References to “D.__* refer to Defendant

I N.B. It is the responsibility of

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infarittatioh

dividing wall, and installing a wood burning stove. Trial Tr. vol. II, 42:1-21, 43:14-44:9: ;

ane

Trial Tr. vol. ITI, 53:13-18; P-1 78; D-25 4 8.

d MIG Montidential inforniatigirand dodirhénts differently thar’ nori-c orittiéntiar

4, The Defendants made changes to the basement and crawl space:

a. On approximately three occasions during the Defendants’ ownership of the -

Property, about one quarter of an.inch of water infiltrated the basement after heavy

rains. Trial Tr. vol. II, 51:10-19; Trial Tr. vol. III, 27:17-21.

b. The Defendants installed a second sump pump in 2011 and no longer had issues

with water in the basement. Trial Tr. vol. II, $1:10-14, 80:21-25; Trial Tr. vol. Ul,

27:22-28:19. | |

c. Mr. McDonald occasionally saw water in the crawl space. Trial Tr. vol. III, 29:24-

25, 30:24-31:14, oe

d. The basement was a “wet basement.” Trial Tr. vol. II, 84:16-17; Trial Tr. vol. 1,

Case# 2018-06816-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee

29:17-18. , )

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5. The Defendants made changes to the yard:

a. Prior to hiring Dougherty Landscaping in 2007 to install a swale on the Property,

the septic system failed at least three times due to the drain field overflowing. Trial

- Tr, vol. I, 64:17-66:8; P-22.

b. The swale diverted water away from the septic system’s absorption area and toward

the front of the house in a side yard, but it did not stop the septic system from

failing. Trial Tr. vol. II, 64:17-23, 66:9-21,

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c. The Defendants installed a sand-mound septic system around 2009-2010 that

corrected any septic issues on the Property. Trial Tr. vol. H, 82:11-21.

6. The Defendants made changes to the front bedroom:

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/ threat non-contentiatintormation ancdotiajentai<".

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2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 15

$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of

a. In 2013, the Defendants replaced the lower part of the drywall in the corer

bedroom because there was a large crack in the sheetrock. Trial Tr. vol. II, 67:11-

ve (gus

22, 86:6-23; Trial Tr. vol. I, 72:4-8.

b. The Defendants sistered studs together in the wall and noticed that the gypsum

board was cracked and falling down, but they did not replace it. Trial Tr. vol. IT,

nthaes

differeritf

68:4-19; Trial Tr. vol. III, 72:4-8.

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c. At that time, the stud “was a little chewed up,” directly above a portion of the

basement where there was termite damage. Trial Tr. vol. II, 85:19-21, 88:10-13;

hone -

Trial Tr. vol. Il, 45:15-25, 46:1-2; D-42._

7. The Defendants converted the garage into a family room:

a. The Defendants hired a contractor, Dave Will Do It, to do the electrical work, which .

involved opening the walls and installing new drywall. Trial Tr. vol. II, 77:12-23.

Case# 2018-0681 6-89 - JUDGE:35 Received at County of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee

b. The contractor removed the garage door, framed the new wall with windows, and

installed sheetrock, Trial Tr. vol, III, 48:19-24. ,

c. The Defendants did not obtain permits, inspections, or approvals for the conversion.

Trial Tr. vol. II, 75:24-76:5. |

OR bes! ab GENE

d. The Defendants installed tiling on the floor as part of the conversion, but they did

not first level the floor. Trial Tr. vol. II, 76:6-11. They knew the floor was not level

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when they installed the tiles. Trial Tr. vol. I, 96:7-10; Trial Tr. vol. Il, 51:2-13.

e. The Defendants were aware of some cracks in the tiles, and some of the cracks were

Scans dideBert: 22503676 ~

visible in the MLS listing photographs. Trial Tr, vol. II, 76:12-77:2, 93:24-95 :3; p-

27.

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and doguments:: 2018-06816-0089 OPINION AND ORDER OF COURT FILED. ORDER ENTERED AS FOLLOWS., Page 16

$0.00. The filer certifies that this filing complies with the provisions of the Public Access Policy of

Mie nfiden tial informationsand.docwrsnts differentlysthamnen-confidentialinformation

f. The Defendants repaired some of the tiles. Trial Tr. vol. II, 94:15-20; Trial Tr. vol.

I, 52:7-12.

8. The Defendants installed slate tile on the front porch, but they did not level the surface or

prepare it first. Trial Tr. vol. IL, 70:24-71:5, 72:14-18; P-7. *

9. The Defendants made repairs to the split-rail fence on many occasions over the years, using

metal braces or joinder plates, sometimes even replacing the entire rail. Trial Tr. vol. II,

74:11-18. |

10. The Defendants did not make any repairs to the exterior of the home, Trial Tr. vol. II, 71:9-

IL. )

B. The Sale of the Property

11. The Defendants were selling the Property because Mr. McDonald developed malignant

melanoma and could no longer spend time in the sun; the Property required a significant

Case# 2018-06816-89 - JUDGE.35 Received at Coun ty of Bucks Prothonotary on 06/10/2022 4:05 PM, Fee

RGR BE RRO ERE RISCOURE. ALB UNE REAR TADOONS THA RARI EBB

amount of outdoor maintenance. Trial Tr. vol. I, 16:5-11.

‘12. At the time of sale, the house was approximately forty-nine (49) years old. D-23.

13. The Plaintiff, Kathleen Nichols-Gould, first-visited the Property in March 2018. Trial Tr.

vol. I, 28:23-29:19,

14, The Plaintiff visited the Property several times: March 11, 2018; March 16, 2018; March

24, 2018; and April 27, 2018. Trial Tr. vol. III, 60:22-61:19.

15, When the Plaintiff first visited, the house was fully furnished, there was snow on the

ground, and there was personal property against the walls in the basement. Trial Tr. vol. I,

03676

30:2-11; P-27; D-1 to D-22.

Pombetraceepe oe

16. The Plaintiff made an offer on the Property which the Defendants immediately accepted.

Trial Tr. vol. II 40:15-41-6; Trial Tr. vol. IJ, 70:23-71-3.

TRAINED

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3 ona

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Policy.of,,

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ling somplies with thegravigions of the Bulli rs Jecess

17. The purchase price of the Property was $480,000. Trial Tr. vol. I, 39:14-15; P-2.

- 18, The Plaintiff signed an Agreement of Sale (with certain contingencies) with the Defendants

for the purchase of the Property on March 11, 2018. Trial Tr. vol. I, 39:7-13; Trial Tr. vol.

I, 60:1-15; P-2; D-26, | |

19, The Plaintiff hired a home inspection company to conduct an inspection of the Property.

<: TG RRSPBENS BOG ROGRID-ILAAT ERIS AEDS ACR Ocaineg at RacktyRob Buockst Pyotr AREY BBZ7 NOB OM: Fes Prh0:00.. The filercerdifies that.this,

Trial Tr. vol. I, 39:16-18. .

20. The inspection was done on March 16, 2018. Trial Tr. vol. II, 61:20-23.

21. The home inspection company issued an Inspection Report, dated March 16, 2018, which

indicated that structural components “appear functional.” Trial Tr. vol. II, 62:24-63:15;

D-27 § 3.

22. Further, the Report stated that everything “‘appeared functional” in the interior except for

the steps, stairways, balconies, and railings, which Mr. McDonald subsequently fixed. Trial

Tr. vol. III, 63:16-64:2; D-27 § 9.

23. The Report did not identify any of the material defects that are claimed in this case. Trial

Tr. vol. I, 138:2-5; D-27. |

24. After receiving the Report, the Plaintiff requested repairs to the chimney and radon |

remediation. Trial Tr. vol. I, 39:19-23. |

25, There was an adjustment in the purchase price by $3,500:00, and some work was done to

correct the problems identified by the Report. Trial Tr. vol. I, 154:20-155:23; Trial Tr. vol.

IM, 65:1-66:8.

26. The sale was originally supposed to occur on May 17, 2018, but this was moved up to April

30, 2018. Trial Tr. vol. 1, 8:13-14, 40:12+19; Trial Tr. vol. III, 67:13-70:22; P-2; D-26.?

E-Filed by: Elizabeth Schecter

thilainitBebkenicady

? It is unclear which party needed to move the date up. Trial Tr. vol. II, 67:13-70:22. The Court, however, finds that

this is not a controlling factor.

‘S -

the provisions of the;Public Access PoliGyMbreisixc:

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.