Firely, J. v. Warner, R.
3415 EDA 2016
Pa. Super. Ct.Oct 26, 2017Background
- In Dec. 2008 John and Holly Firely (Buyers) and Ralph Warner et al. (Sellers/Trustees) executed a standard Pennsylvania Association of Realtors Agreement of Sale for a $700,000 property; Buyers placed $70,000 in escrow as deposit.
- The Agreement contained 15‑day inspection contingencies (Option 1) and a “time is of the essence” clause; days are counted from execution excluding the execution day.
- Buyers’ inspections showed failing septic and non‑potable well; Buyers’ agent emailed Sellers’ agent on Dec. 29, 2008 that Buyers would not proceed absent negotiation on the septic.
- Sellers refused to return the $70,000 deposit; Buyers filed suit (Oct. 2009) seeking return of the deposit. Sellers counterclaimed for damages and to retain the deposit.
- At bench trial (Sept. 29, 2016) the trial court found for Buyers, ordering return of the $70,000; Sellers appealed arguing (1) Buyers’ termination notice was untimely or improper in form and (2) Sellers suffered damages from resale.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Compliance with Pa.R.A.P. 1925(b) | Firely: Appellants’ vague 1925(b) should not bar review because trial court gave no rationale in its order | Sellers: Appellants’ 1925(b) statement is vague and appeal should be quashed | Court declined to quash — because trial court’s original order lacked an explanatory rationale and a Rule 1925(a) opinion later provided grounds, so issues not waived |
| Whether Buyers timely terminated under the 15‑day inspection contingency | Buyers: Termination was timely — inspections period ran Dec.15–Dec.29, 2008 per agents’ communications and expert report; Dec.29 email constituted notice | Sellers: Buyers failed to terminate within the contingency period (time expired) or, alternatively, notice format was improper so termination ineffective | Court affirmed trial court: competent evidence (emails, expert report, agent testimony) supported finding Buyers timely terminated; court refused hyper‑technical enforcement where parties’ conduct showed inconsistent date usage |
| Validity of termination format (email) | Buyers: Agent’s Dec.29 email, followed by signed Jan.6 termination, sufficed; Agreement didn’t prescribe a specific termination form | Sellers: Termination not in proper prescribed format so ineffective | Court: No contractual language required a specific form; trial court reasonably found the email (and later signed notice) adequate |
| Sellers’ counterclaim for resale damages | Sellers: Market downturn and resale loss attributable to Buyers’ breach; deposit should be retained and damages awarded | Buyers: Sellers failed to prove causation and damages; market decline and failed deals show other causes | Court: Trial court reasonably found Sellers did not meet burden to link losses to Buyers; counterclaim failed |
Key Cases Cited
- Johnston the Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511 (Pa. Super. 1995) (appeal generally lies from entry of judgment rather than denial of post‑trial motions)
- Drum v. Shaull Equip. & Supply Co., 787 A.2d 1050 (Pa. Super. 2001) (final judgment entered during pendency of appeal can perfect appellate jurisdiction)
- Hess v. Fox Rothschild, LLP, 925 A.2d 798 (Pa. Super. 2007) (Rule 1925(b) statements that are vague may be excused when trial court’s rationale is not apparent)
- Wyatt, Inc. v. Citizens Bank of Pennsylvania, 976 A.2d 557 (Pa. Super. 2007) (standard of review for bench trials: factual findings given deference; legal conclusions reviewed de novo)
- DiGiuseppe v. DiGiuseppe, 96 A.2d 874 (Pa. 1953) (time‑is‑of‑the‑essence provision may be waived by parties’ conduct)
- Gutteridge v. J3 Energy Group, Inc., 165 A.3d 908 (Pa. Super. 2017) (factfinder may accept or reject evidence; appellate court will not reweigh credibility)