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L a: w-. ._ .. .. c.: t i i 4 (. _. 1 .. _ S ~ u , _ .. - '`>ti~ w. ~ ., 1 ~s ~i: q ~A G m .~ CERTIFICATE AND TRANSMITTAL OF RECORD UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (c) To the Prothonotary of the Appellate Court to which the within matter has been appealed: SUPERIOR COUKP OF THE UNDERSIGNED, Prothonotary of the Court of Common Pleas of C(l~NID County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the Following matter: Case No. 94-1070 Civil Terns; No. 424 HBG 1997 FRANK WILSON VS. ~ ~ W~ NSTEIN-HIRSH APPRAISAL GROUP, AND COMMERCE BANK/HBG ~._ w~? _ ._~~ U°- '- Q~ ~~_ ~ J t ~~ 4c ~~: c~ ~ N `.1 ~;;~~~ s cr ? The documents comprising the record have been numbered ~o:nr?~f'o. 1 to No. 579 and attached hereto as Exhibit A is a gyp` ~is~of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the appellate court is June 24th, 1997 (Seal of Court ) ~(t/_A_MDn_t~~ ~, ~~p~ .l,,t~y.. Prothonotary An additional. copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. +7,:ceivetl in Superior Court RE!:ORD RECEIVED: Date: „~h I-UUJU UfI(a (signature & title) CERTIFICATE AND TRANSMITTAL OF RECORD UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (c) To the Prothonotary of the Appellate Court to which the within matter has been appealed: SUPERIOR O7[IRP OF PENNSYLVANL4 THE UNDERSIGNED, Prothonotary of the Court of Common Pleas of CI148ERLAND County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Case No. 94-1070 Civil Term; No. 424 HBG 1997 FRANK WILSON VS. WEINSTEIN-HIRSH APPRAISAL GROUP, AND COMMERCE BANK/HBG The documents comprising the record have been numbered from No. 1 to No. 579 and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the appellate court is June 24th, 1997 (Seal of Court ) ~/,f~/_Man_~~i ~ p~_ .~ Prothonotary ~ An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. RECORD RECEIVED: Date: (signature & title) Commonwealth of Pennsylvania ~ ss: County of Cumberland In TESTIMONY WIJEREOF, I have hcrcunto this ~n~' ~~ Lawrence E. Welker ,prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the cnsc therein stated. wherein Frank Wilson Plaintiff, and Weinstein-Hirsh Atmraisal Grraro and Crnrtterce Bank/Ha_rrint~m Dcfcndane , as the same remains of record before the said Court at No. 94-1070 0( C;vi t ~.,,, Term. A, D. X9C_. set my hand and affixed the seal of said Coun day of Jtlne A. D., 1997 mthonntury 1, Harold E. Sheely President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that Fence E. Welker. PLT]thnnntwnr by whom the annexed record, certificate and attestation were made and given, and who, in his own propefhandwriting, thcrcuntosubscribed his name and affixed the seal of the Court of Common Pleas of said County, was,at thetimcofsodoing,and now is Prmhonotary in and for said County of timberland in the Com monwcalth of Pcnnsylva nia, duly commissioned and qualified to all of whose acts as such full faith and credit arc and aught to be given as well in Cattrts afjudicaturc as elsewhere,and that the said record, ccrtifiwtc and attestation arc in due form of law and ma y the proper officer. ~ ~; ~- Praiden udgc Commonwealth of Pennsylvania County of Cumberland ss: I, Lawrence E. Welker ,Prothonotary bf the Court of Common Pleas in and for the said County, do certify that the Honorable Harold E. Sheely by whom the foregoing attestation was made, and who has thereunto subscribed his name, was,at thetime of making thereof, and still is President J udgc of t he Cou rt of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and far said County, duly Commissioned and qualified; to all whose acts as such full faith and credit arc and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hcrcunto set my hand and affixed the seal of said Court this 24th day of Ju~nre ~ /~- ,A.,D. 193Z_. I'nnhunnl:uc Among the Records and Proceedings enrolled in the court of Common Pleas in and for the couoro „r Cumberland 424 HBG 1997 to No. 94-1070 Civil Tenn Tcrm, 19 in the Commonwealth of Pennsylvania is contained the following: COPY OF Appearance DOCKET ENTRY FRANK WILSON VS. WEINSTEIN-HIRSH APPRAISAL GRCUP, AND OCAMERCE BANK/HARRISBURG PAGE N0. 1-112 Please see previous appeal. t13-120 May 17, 1995, Defendants' Motion for Judgment on the Pleadings. 121 May 17, 1995, Praecipe for listing case for Argument by Laurence A. Hirsh, Esq., and Charles F. Schubert, Esq. 122-132 July 10, 1995, Cnler of Court In Re: Application for Relief of Commerce Bank in the Nature of a Motion to Quash Appeal as interlocutory - Superior Court grant Motion to Quash Appeal - Appellant's request for opportunity to Petition Lower Court is denied - per cur'ian 134-139 July 25, 1995, Motion for Approval of Court for Discontinuance of Count III of the Amended Complaint. 133 July 25, 1995, Rule to Show Cause In Re: Motion for Discontinuance of Count III of the Miended Comiplain Defendants Rule returnable 7 days after service By 140 141-143 t45-153 144 154-155 Notice nailed 7/25/95 July 25, 1995, Praecipe for listing a Esq. August 8, 1995, Stipulation. Approval of Court for t -Entered upon Judge George E. Hoffer,J case for Argument b1' Lawrence J Newry, August 15, 1995, Motion to Make Rule Absolute. August 17, 1995, Order of Court In Re: Plaintiff's Motion to make Rule Absolute - Count III of Amended Complaint against Ccrmterce Bank/Harristatrg be marked discontinued By Judge George E. Hoffer, J. Notice mailed 8/17/95 October 2, 1995, Order of Court dated 10/2/95 In Re: Defendant's Motion for judgment on the pleadings Denied By George E. Hoffer, J. Notice mailed 10/2/95 156 January 25, 1996, Praecipe for listing case for Trial by Lawrence J. Neary, Esq. 157 February 22, 1996, Order of Court dated 2/20/96 Prothonotary to relist case for May Trial Term ey Harold E. Sheely, PJ copies mailed 2/22/96 58-160 May 10, 1996, Pretrial Conference dated 5/1/96 By George E. Hoffer, J. 61-165 May 22, 1996, Verdict - Jury Selected 5/20/96. 66-168 May 31, 1996, Plaintiff's Motion for Post-Trial Relief. 169 June 4, 1996, Order of Court dated 6/3/96 In Re: Plaintiff's Post Trial Notions - Request for Trial Transcript -Granted By George E. Hoffer, J. Copies mailed 6/5/96 70-193 September 18, 1996, Transcript filed. 94-404 September 18, 1996, Transcript filed. OS-515 September 18, 1996, Transcript filed. 516 November 11, 1996, Order of Court dated 10/31/96 In Re: Argument on Plaintiff's Post Trial Notions - Argument 11/18/96 3:30 Fivl CR 3 By George E. Hoffer, J. Copies mailed 11/1/96 Page No. 517-523 April B, 1997, Opinion and Older of Court dated 4/8/97 In Re: Plaintiff's Notion for Post-Trial Relief -Denied B1' George E. Hoffer, J. Copies mailed 4/8/97 524-525 April 16, 1997, Praecipe for Entry of Judgement on the Verdict and Judgnent entered. 526-529 April 28, 1997, Notice of Appeal to Superior Court ty Lawrence J. Newry, Esc 530-531 May 9, 1997, Superior Court of PA Notice of Appeal Docketing to 8424 HBG 19' 532-579 Misc. i P E r rn m .~ ~I N v z .~ .~/ U 0 ~I 0 .y T 0 z C T C o ~ = a 0 CV 4~ C C ia4 E a ~ X c q N: c u ~ o" E ~ u m C s s a CERTIFICATE AND TRANSMITTA[. OF RECORD UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (c To the Prothonotary of the Appellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYLVANIA TH6 UNDERSIGNED, Prothonotary of the Court of Common Pleas of CUMBERLAND County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Case No. 94-1070 Civil Term; No. 224 Hbg. 1991 S FRANK WILSON VS. WEINSTEIN-HIRSH APPRAISAL GROUP, AND COMMERCE BANK/HBG The documents comprising the record leave been numbered from No. 1 to No. 112 and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the appellate court is April 12, 1995 (Seal of Curt ) Q t~-pe.r~ Prothonotary An additional copy of this certificate is enclosed. Please sign aid date copy, thereby acknowledging receipt of this record. _m s RECORDZRECEIVED: Date: Received in Superior Court ;n r `., ~~ signs ure & title) `' -wnN15BURG CERTIFICA9'E AND 'fRANSMI'I"fAI. OF' RECORD UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (c) To the Prothonotary of the Appellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYLVANIA TFiE UNDERSIGNED, Prothonotary of the Court of Common Pleas of CUMBERLAND County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, iE any, and the docket entries in the Following matter: Case No. 94-1070 Civil Term; No. 224 Hbg. 1994 FRANK WILSON VS. WEINSTEIN-HIRSH APPRAISAL GROUP, AND COMMERCE BANK/HBG The documents comprising the record have been numbered from No. 1 to No. 112 and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the appellate court is April 12, 1995 (Sea.l of Court ) O , ~„~~' Prothonotary An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. RECORD RECEIVED: Date: (signature & title) Commonwealth of Pennsylvania County of Cumberland ss: Cane No. 2?4 Hbg. 1995 In TESTIMONY WHEREOF, I have hcrcunto this 1Welfth I, f.atvrence E. Welker ,Prothonotary of the Court of Common Pleas in and for srid County, do hereby certify that the foregoing is a full true and correct copy of the whole record of the case therein stated, wherein Frank Wilaon Plnintiff, and Weinstein-Hirsh Aooraisal Gmyp. and Crxmterce Bank/Harrisburg, Defendant , as the same remains of record before the said Court at No. 94-1070 of set my ha~nd ,~d affixed the seal of said Court day ol`,,,- _ A. ~., 19.~.L. PrNhnnnlarv I, Hamrd F._ ShPPIv President Judge of the nwn*ti Judicial District, composed of the County of Cumberland, do certify that •atvr n E. W k r. Pmthonotarv by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thcrcunto subscribed his name and affixed the scat of the Court of Common Pleas of said County, was, at the time o(sodoing, and now is Prothonotary in and for said County of Cwnlrrland in the Commonwealth of f ennsylvania, d my commissioned and qualified to all of whose acts as such full faith and credit arc and ought to be given as well in Courts ofjudicalurc as clscwhcre, and that the said record. certificmc and aucstation arc in due form of law and mallc y the proper officer. (~ ~ C Commonwealth of Pennsylvnnin County of Cumberland ss. I, Lawrence E. Welk.~r Prothonotary bf the Court of Common Pleas in and far the said County, do certify that the Honorable Harold E. Rheely by whom the foregoing attestation was made. and who has thcrcunto subscribed his name, was, et the time o(making thereof. and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and fnr said Coumy. duly Commissioned and yualificd; to all whose acts ax such full faith and credit arc and ought to he given, as well in Courts of judicature as clscwhcre. IN TESTIMONY WHEREOF, I have hcrcunto set my hand and affixed the seal of said Court this ~12Y1~---rfrt• of Aoril n.D. ~q~..~. r„~a,nn~n.~,~ E F vl rv N e 'f_ _F~ C f rl .~ U 0 r of ti a d Z N .'~ C Z .~ 3 m 0 O V 4i ~. Q m a` ~: x ~: =~ ~= i U ~` H E e A a ' ` O ~ ~. U w w 0 r 0 6 •. - Among the Rceords and Pmcccdings cnrollcd in the court of Common Plcas in and for the county of Cumberland in the Commonwealth of Pennsylvania NO. 224 Hbg. 1995 to No. 94-1070 Civil Term Tcrm. 19 is contained the following: COPY OF Appearance DOCKET ENTRY FRANK WILSON VS. WEINSTEIN-HIRSH APPRAISAL GROUP, AND COMMERCE BANK/HARRISBURG PACT r~_ 1 - 14 March 4, 1994, Complaint, filed. 15 - 31 March 21, 1994, Sheriff's Return of Service, filed. 32 - 36 March 24, 1994, Preliminary Objection of Defendant Commerce Bank, filed. 37 - 57 Marsh 28, 1994, Motion for Leave to Amend Complaint, and Rule to Show Cause, filed. AND NC7W this 28th day of March, 1994, upon consideration of the Plain- tiff's Motion for Leave of Court to Amend Complaint, a Rule is hereby entere to show cause why the Plaintiff should not be permitted to amend the Complai to substitute the names of Laurence A. Hirsh and Charles F. Shubert, Jr., Defendants in place of the Weinstein-Hirst Appraisal Group. Rule returnable 20 days after service. By the Court, Harold E. Sheely, P.J. 58 - 67 May 11, 1994, Motion to Make the Rule Absolute, and Order of Court, filed. AND NOW this 11th day of May, 1994, upon consideration of the Motion to Make the Rule Absolute, Plaintiff is hereby granted leave of Court to amend the Complaint to substitute Defendants Laurence A. Hirsh and Charles F Schubert, Jr. in place of Defendant, Weinstein-Hirsh Appraisal Group. By the Court, Harold E. Sheely, P.J. 66 - 82 May 17, 1994, Amended Complaint, filed. 83 - 85 June 9, 1994, Sheriff's Return of Service, filed. 86 - 100 July 12, 1994, Answer and New Matter of Defendants Laurence A. Hirsh and Charles F. Schubert, Jr. to Plaintiff's Amended Complaint, filed. 101 Nw. ]5, 1994, Praecipe for Listing Case for Argurnent, filed. 102 - 107 Feb. 8, 1995, Opinion and Order of Court, filed. In Re: Defendant's Pre- liminary Objections AND NOW, February 8, 1995, after careful consideration of the parties' briefs and oral arguments, the preliminary objection in the nature of a demurrer of Defendant Commerce Bank is granted. By the Court, George E. Hoffer, J. 108 - 110 March 9, 1995, Notice of Appeal, Eiled. NOTICE IS HEREBY GIVEN that Frank Wilson, Plaintiff above named, hereb appeals to the Superior Court of Pennsylvania Erorn the Order entered in thi natter on February 8, 1995, granting the Preliminary Objections of Defendan Commerce Bank/Harrisburg. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. By: Lawrence J. Neary, Esq. 111 - 112 March 15, 1995, Superior Court of Pennsylvania Official Docket H224 Hbg 199 fvICNEES, WALLACE &NURICK ATTORNEYS AT LAW 100 PINE STREET P. O BO% IIBB HARRISBURG. PA. 17108.1166 Tn[n1p1[ 171712]28000 FAx17171237.5300 MICIIABL R. KBLLBY 11111 [CT 111~L' (71 )) DDT•6DQD //\~//J July 31, 1995 Thomas E. Cheffins, Court Administrator Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 AUG 01 1995 ~: Re: Frank Wilson v. Laurence A. Hirsh and Charles F. Schubert, Jr., and Commerce Bank/Harrisburg C.P. Cumberland County No. 1070 Civil 1994 Dear Mr. Cheffins: Please be advised that Defendant Laurence A. Hirsh and Charles F. Schubert, Jr. do not oppose the Motion for Approval of Court for Discontinuance of Count III of the Amended Complaint filed by Plaintiff on or about July 25, 1995. Sincerely, McNEES, WAL ACE & NURICK gy (~ . Michael R. Kelley MRK/mrs cc: Lawrence J. Neary, Esquire Daniel L. Sullivan, Esquire I.VwmsV~nUVlwilwn. bA FRANK WILSON, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 1070 CIVIL 1994 CIVIL ACTION -LAW JURY TRIAL DEMANDED v. LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., Defendants PLAINTIFF'S BRIEF IN SUPPORT OF MOTION FOR POST TRIAL RELIEF STATEMENT OF THE CASE: A. PROCEDURAL HISTORY Plaintiff initially filed a Complaint on November 12, 1993. Preliminary Objections were filed by Defendant Commerce Bank on March 24, 1994. On May 12, 1994 Plaintiff filed an Amended Complaint to which Defendants Laurence A. Hirsh and Charles F. Schubert, Jr. filed an Answer with New Matter on July 11, 1994. The Cumberland County Court on February 8, 1995 filed an Opinion and Order granting Defendant Commerce Bank's Preliminary Objections in the Nature of a Demurrer holding that the Bank owed no duty to Plaintiff. Thereafter, on May 15, 1995, Defendants filed a Motion for Judgment on the Pleadings and while said Motion was pending, by Stipulation, the parties entered additional allegations to the Amended Complaint. On August 2, 1995, after the submission of Briefs and Oral Argument, Cumberland County Court entered an Order denying Defendants' Motion for Judgment on the pleadings. The case proceeded to trial before the Honorable George E. Hoffer on May 20, 1996 and at the conclusion of said trial on May 22, 1996 the jurors responded to Question No. 1 on the Verdict Slip in the negative which resulted in judgment being entered in favor of the Defendant. Plaintiff filed a Motion for Post-Trial Relief on May 31, 1996 and the matter is now before the Court for argument. B. STATEMENT OF PLACE OF RAISING OR PRESERVING PRESERVATION OF ISSUES: Plaintiff requested Point for Charge No. 2 which read as follows: The Plaintiff, Frank Wilson, was not in privity with the Defendants, which means that he was not a party to the contract of employment with the Defendants. This, however, does not prevent him from maintaining an action under the legal principle just read to you (Restatement of Torts 2d Section 522) provided that the Plaintiff is considered a beneficiary for whose benefit the information is supplied and the information was intended to influence the Plaintiff in that transaction. It is not necessary that the Plaintiff be known to the Defendants as an individual when the information is supplied. It is enough that the maker of the representation intended to reach and influence either a particular person or persons, know to them, or a group or class of persons, distinct from the much larger class who might reasonably be expected to have access to the information. It is enough that the supplier gives the information for repetition to a certain group or class of persons and the Plaintiff proved to be one of them. Thus, the Court finds that the Plaintiff is a person to whom the law holds that the Defendants would owe a duty of care. 2 The Court read the entire charge to the jury with the exception of the final sentence. (N.T.322). At the conclusion of Points for Charge counsel for the Plaintiff noted an exception for the refusal of the Court to charge as a matter of law that the Defendants owed a duty to the Plaintiff. (N.T. 331). In their deliberations, the jurors answered the first question on the Verdict Slip which is set forth below: Question 1: Did Defendants supply the appraisal report for the guidance of Plaintiff in his business transactions? YES_ NO X If your answer to Question No. 1 is "No", return to the Courtroom and do not answer any further questions. If your answer to Question No. 1 is "Yes", go on to Question No. 2. Plaintiffs Motion for Post-Trial Relief submits that the Court was incorrect in refusing to grant the binding instruction requested by the Plaintiff regarding the existence of a duty of care owed by the Defendants to the Plaintiff. 3 C. STATEMENT OF FACTS For the purpose of this Post-Trial Motion, the only relevant facts relate to the relationship of the parties in the context of whether the Defendants owed Plaintiff a duty of care. The jury did not reach questions numbers 2 through 9 on the Verdict Slip which address the other elements of the cause of action, including negligence and damages which for the purpose of this Motion are not relevant. The facts relevant to the issue of whether there was a duty of care are set forth below. Plaintiff, Frank Wilson, in February 1988 entered into an Agreement of Sale as the seller for a vacant lot on Market Street in Hampden Township to George Adams, as nominee, with the buyer ultimately being identified as the partnership of Adams-Molinari (N.T. 10-11 286). Prior to this, Defendant Hirsh, was requested by George Adams (N.T. 203-204) on or about June 24, 1988 to perform an appraisal of an office building to be constructed on land owned by Wilson, Garn and McKee and that the Adams-Molinari partnership was to be the buyer/developer (N.T. 215). Mr. Hush's only contact was with Mr. Adams who ordered the appraisal and who provided the information necessary for the appraisal. While he knew of Molinari's involvement in the project, he never discussed the project with her. (N.T. 288). Work was done on the appraisal between June 1988 and October 19, 1988 when, it appeared from the notes in the Hirsh file, that Hirsh was directed by George Adams to forward the completed appraisal to Commerce Bank. (N.T. 217), for construction financing purposes. (N.T. 285). 4 The final appraisal identified Wilson, Garn and McKee as the owners of the land and the buyer/developer to be the Adams-Molinari Partnership. (N.T. 13, 215). Between February of 1988 and March 1989 the structure of the project changed and Frank Wilson became partners with George Adams in development of the office building which was originally to be built for the Adams-Molinari Partnership. (N.T. 18). Commerce Bank issued a Commitment Letter for the construction financing to Frank Wilson and George Adams in February 1989 requiring a appraisal to be performed at the borrower's cost and that the appraised value was to be in excess of a certain amount as a condition of the loan. (N.T. 225). Commerce Bank already had a copy of the Hirsh appraisal before the Commitment Letter was issued. (N.T. 228). This was the only appraisal performed and submitted in relation to this project. (N.T. 88). The appraisal fee of $3,045.00 was paid to Hirsh at the loan closing in March of 1989 from the proceeds of the construction mortgage issued to Wilson, Garn and McKee which became the partnership name for the partnership consisting of George Adams and Frank Wilson who became the buyer/developer of the project. (N.T. 17-18), the new partnership documents were formalized at the loan closing in March of 1989. (N.T. 15). Hirsh did not know Wilson personally (N.T. 286), other than his identification in the appraisal as the owner. (N.T. 285). He did not know that Wilson had taken the place of Molinari in the development of this project. 5 II. STATEMENT OF QUESTIONS INVOLVED: DID THE COURT ERR WHEN IT REFUSED TO CHARGE AS A MATTER OF LAW THAT THE PLAINTIFF WAS A PERSON OR A MEMBER OF A GROUP OR CLASS OF PERSONS FOR WHOSE BENEFIT THE APPRAISAL WAS PERFORMED SUCH THAT THE DEFENDANTS OWED A DUTY OF CARE TO THE PLAINTIFF? Suggested Answer: Yes III. ARGUMENT: A. WHETHER A DUTY EXISTS IN THE FIRST INSTANCE IS A QUESTION OF LAW TO BE DECIDED BY THE COURT RATHER THAN THE JURY. Question 1 on the Verdict Slip, which was taken directly from the wording of the Restatement 2nd of Tort §552 which provides as follows: One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. (Emphasis added). This Court noted in it's Decision on the Defendant's Motion for Judgment on the Pleadings that this section of the Restatement was adopted in Pennsylvania in the case of Mill-Mar, Inc., v. Statham, 278 Pa Super 296, 420 A.2d 548 (1980). It is axiomatic that a finding of negligence requires a finding that the Defendant breached a duty owed to the Plaintiff. In Banyas v. Lower Bucks Hospital, 437 A.2d 6 1236 (Pa. Super 1981), the Superior Court in determining whether a duty exists, observed: Our Supreme Court discussed the concept of duty in Sinn v. Burd, supra. Citing Prosser Palsgraf Revisted, 52 Mich.L.Rev. 1, 14-15 (1953), the court noted: In the end the court will decide whether there is duty on the basis of the mores of the community, "always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind." (Sinn v. Burd, 486 Pa 146, 404 A.2d 672 (1979). Likewise, in Huber v, Commonwealth Department of Transportation, 551 A.2d 1130 (Pa. Commw. 1988), the Court succinctly stated: Whether a duty exists in the first instance is a question of law. Mindala v. American Motors, Corporation, 518 Pa. 350, 543 A.2d 520 (1988). Thus, questions of law are to be decided by the court rather than by the jury. In Hoffman v. Sun Pipeline Company, 575 A.2d 122 (Pa. Super 1990). The Superior Court observed that the question of whether to impose a duty is essentially one of policy. Duty in any given situation is predicated upon the relationship existing between the parties at the relevant time. Zanine v. Gallagher, 497 A.2d 1332, 1334 (Pa. Super 1985). Thus, it is submitted that the Court, under the facts in this case, should have made a determination as a matter of law whether the Plaintiff was a person to whom the 7 Defendants owed a duty of care. By not fully charging the jury, as requested by the Plaintiff, the Court left the broad policy issue of the determination of the existence of a duty to be decided by the jury when, in fact, this decision should have been made by the Court. It is submitted that the facts, which are not in dispute and the application of the Restatement would establish that the Plaintiff would have been within a group or class of persons to whom a duty was owed. B. THE APPRAISAL WAS PROVIDED AS A PROFESSIONAL SERVICE UPON WHICH RELIABILITY BY A THIRD PARTY WAS FORESEEABLE THUS, IMPOSING A DUTY OWED TO THE PLAINTIFF. There is no dispute that Defendants Hirsh and Schubert were professional appraisers who utilized their combined skill and knowledge to produce the October 19, 1988 real estate appraisal which was submitted to Commerce Bank to meet the requirements for a financing commitment and which was relied upon the Plaintiff in assessing the feasibility of his participation in the partnership. As skilled appraisers, Defendants are held to a higher level of accountability for their actions, including foreseeability that anyone involved in a financial arrangement, in this case a construction mortgage, based upon Defendants' professional judgment, would rely upon such expertise. This premise has been recognized by the Pennsylvania Appellate Courts in Garbish v. Malvern Federal Sav. 8 Loan Assoc., 358 Pa. Super 282, 517 A.2d 547 (1986). In that case of first impression, mortgagors of a property relied upon the mortgagee's experience and skill as the sole distributor of construction funds. The determinative factor in Garbish was the reliance of one party upon the skill of 8 another party. In Garbish, the Court stated that when a person "either has or procures his appointment by asserting that he has skill beyond that of the ordinary prudent person, he will be judged by the level of skill he has or that he claims to have, whichever is higher." Id, at 554. Plaintiff, Frank Wilson, knew that the Defendants Hirsh and Schubert were hired to prepare an appraisal which was to be submitted to Commerce Bank regarding the project, and that the appraisal was to be used by the bank as the basis for granting a construction loan. Wilson relied upon Hirsh's and Schubert's professional accuracy in the appraisal to fulfill Commerce Bank's loan precondition and, for his own decision to financially commit to the partnership construction project. Wilson's reliance was appropriate and both Hirsh and Schubert should have foreseen such reliance upon their professional work product. While the Pennsylvania Appellate Courts have not yet specifically addressed the duty of an appraiser to other than a party in privity with the appraiser, other jurisdictions have held that foreseeability on behalf of the appraiser is a strong factor in determining such a duty to the third party. The old rule was that person, not a party to a contract, i.e. not a privity, could not sue in negligence arising from a contract. This now a minority rule. The majority of Courts allow third parties to sue in negligence and have established the boundaries of liability to third persons under three separate criteria. The first is "§552 Liability", which is a middle of the road rule; the second is the "Foreseeable Plaintiffs", which is more 9 liberal and the most conservative Is the "Known Third Party Plaintiffs". 18 Real Estate L.J. §233, "Real Estate Appraisal: The Legal Liability" (1990). An example of the liberal application of the "Foreseeable Plaintiffs" is Costa v. Neimon, 366 N.W.2d 896 (mss. Ct. App. 1985). In Costa v. Neimon, 366 N.W.2d 986 (lMs. Ct. App. 1985), real estate purchasers brought action to recover from lender's real estate appraiser for negligent misrepresentation. The plaintiffs in Costa sought a homeownership loan from a lending institution which hired the appraiser and preconditioned the loan upon the appraisal of the subject property. In holding the appraiser liable to a third party, the Costa court stated: It is not necessary that the appraiser have foreseen the harm to a particular plaintiff, although here ... harm to the plaintiff was foreseeable. Neimon should have foreseen that a prospective buyer of the property being appraised was "within the ambit" of harm which would result from a carelessly done appraisal. In the case before the Court, it is clearly foreseeable that the very person for whom the appraisal was performed i.e. the buyer/developer, would be harmed if the appraisal was done carelessly. An example of the more conservative or "Known Third Party Plaintiffs" is Larsen v. United Federal Savings and Loan Assoc. o/Des Moines, 300 N.W.2d 281 (Iowa 1981) (See, 21 ALR 4th 855). In Larsen, the prospective home owners relied upon appraisal figures in order to decide whether or not to engage in the financial commitment to purchase a home. Specifically, the Court said: 10 Nor Is it necessary ... that the party suing for negligence be the only party for whom the information was provided. It is enough that he or she be a third party whom the negligent provider of the information knew would utilize it. Even though the appraisal might be made primarily for the benefit of the lending institution, the appraiser should also reasonably expect the home purchaser, who pays for the appraisal and to whom the results are reported (and who has access to the written report on request), will rely upon the appraisal to affirm this or her belief the home is worth the price he or she offered for it. The purchaser of a home should be among those entitled to rely on the accuracy of the report and therefore should be entitled to sue for damages resulting from a negligent appraisal. 300 N.W.2d, at 287. In the present case, Wilson stepped into the shoes of the proposed developer, i.e. the Adams-Molinari partnership, for whom the appraisal was requested. Wilson was also a partner in the entity that ultimately paid for the appraisal. Hirsh understood the purpose of the appraisal was to form the basis for a construction loan and was directed, at or about the time that the appraisal was finalized to forward a copy of the appraisal to Commerce Bank. A copy of the summary of the appraisal was also provided to Wilson, who relied upon the value stated in deciding whether to become involved in the project. While Hirsh did not know Wilson personally, he also did not have any contact with Molinari, one of the original partners who was identified on the appraisal as the proposed buyer and developer. Thus, Wilson would also clearly fit within the category of a "Known Third Party Plaintiff." The third or moderate approach is the "§552 Liability" contained in the Restatement (Second) of Torts and as illustrated in the case of Haberman v. Washington 11 Public Power Supply System, 744 P.2d 1032 (Wash. 1987). In that case, the Court relied upon Restatement (Second) of Torts, §552 (1977) to determine the sufficiency of bondholder claims in connection with purportedly negligent misrepresentations offact by numerous individuals involved in the construction and financing of a system of nuclear power plants. In that case, the Court set forth three circumstances under which a party would be held liable for negligent misrepresentations. Liability ... is thus limited to cases where (1) the defendant has knowledge of the specific injured party's reliance; or (2) the plaintiff is a member of a group that the defendant seeks to influence; or (3) the defendant has special reason to know some member of a limited group will rely upon the information. Haberman, at 1067. In the present case, while Hirsh had no specific knowledge of Wilson's reliance on the appraisal, there is no question that Wilson belonged to a class of buyers, in this instance, owner/developers, for whom the appraisal of the commercial property was intended and that, as a member of that class or group he could be expected to rely upon the appraisal made by Hirsh. Thus, it is for this Court to adopt one of the three approaches to define the extent to which an appraiser awes a duty to those who rely upon his appraisal. The Plaintiff submits that under any one of these 3 approaches he becomes a person to whom a duty of care is owed because of the close relationship, i.e. a partner in the partnership for whom the appraisal was performed. The Plaintiff is not an outsider or so far removed from the person for whom the appraisal was performed, so as to place him outside of the duty of care. 12 In Hoffman v. Sun Pipe Line Company, 575 A.2d 122, 125 (Pa. Super 1990) the Court, citing Prosser and Keeton, observed, that; "duty', is only an expression of the subtotal of those considerations of policy which lead the law to say that a plaintiff is entitled to protection. Because questions concerning 'duty' arise in ever changing contexts, courts have employed a variety of analytical approaches towards, for example, courts have spoken of both 'foreseeability' (of a particular plaintiff or a particular harm) and 'proximate cause' while attempting to delineate the scope of a defendant's duty. The essential goal to defining the duty is to arrive at some method of limiting liability to those consequences which have some reasonably close connection with the defendant's conduct and the harm which is originally threatened". It is submitted, to hold that the Plaintiff, as a matter of law is not owed a duty of care, would relieve appraisers from liability for their work product to all but the person who was in privity with the appraiser. In this case, it could be argued that Wilson, when he stepped into the shoes of Molinari as the buyeddeveloper, and when the partnership, of which he was a partner actually paid for the appraisal, was actually in privity with the appraiser or was in such a close relationship that the duty of care should clearly extend to him under any one of the 3 approaches to setting the boundaries of liability. Whether the duty extends to him is for the Court to decide as a matter of policy and not for the jury to decide as a factual question. 13 IV. CONCLUSION: For the reasons stated above, Plaintiff requests Post Trial Relief in the form of a grant of a new trial wherein it is established, as a matter of law, that the Plaintiff, under the circumstances of the case, was a member of the group or class of persons to whom the Defendant owed a duty of care such that the Verdict Slip should omit Question #1. Respectfully Submitted, CONNELLY, REID & SPADE Date: 0 .~ 108 =-1"f2 Walnut~Sfreet / P. O. Box 963 ~ Harrisburg PA 17108 (717)238-4776 (717) 238-4793 - Telecopier Pa. I.D. No. 25827 14 CERTIFICATE OF SERVICE I, Lawrence J. Neary, Esquire, of Connelly, Reid, & Spade, attorneys for Frank Wilson, hereby certify that I have on the date shown below, served a copy of the foregoing Plaintiffs Brief in Support of Motion for Post Trial Relief to the person(s) and in the manner indicated below: HARVEY FREEDENBURG, ESQUIRE MCNEES, WALLACE & NURICK 100 PINE STREET HARRISBURG, PA 17108 UNITED STATE FIRST CLASS MAIL, POSTAGE PREPAID Respectfully Submitted, Date: ~ CONNELLY, REID w nce J. a ,Esquire rney for I ntiff, FrankrV 108 - 112 ut Street \ P. 0. Box 963 Harrisburg PA 17108 (717) 238-4776 (717) 238-0793 - Telecopier Pa. I.D. No. 25827 _, r LAw orncrs CONNELLY, RHID LQC SPADE 10R • 112 WALNUT S7RELT P. O. BoX 963 1011N 1. CONNELLY, IR. IIARRISOURO, PCNNSYLVANIA 17108 TELEPIJONB JAMES E. REI0, 1R. (7171 TJSd776 LAMES F. SPADE TELECOPIFJI p171 JJS~179J LAWRENCE 1. NEARY JOHN F. LYONS FILE NO. May 30, 1996 920354 Cumberland County Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: Frank Wilson v. Hirsh and Schubert No. 1070 Civil 1994 Dear Sir or Madam: Enclosed please find for filing an original and two copies of Plaintiff's Motion For Post-Trial Relief. Please enter the original in the docket and return a stamped in copy to me in the envelope enclosed for your convenience. Copies of said Motion have been served directly on the Court Administrator and Judge Hoffer. LJN/tgr Enclosures cc: George E. HoffeJ•, Judge Thomas Cheffins, Cumberland County Court Administrator Harvey Freedenberg, Esquire Frank Wilson FRANK WILSON, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. N0.94-1070 CIVIL TERM CIVIL ACTION -LAW LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., Defendants IN RE: PLAINTIFF'S POST TRIAL MOTIONS ORDER OF COURT AND NOW, June 3,1996, pursuant to Pennsylvania Rules of Civil Procedure 227.1(b)(2), 227.2 and 227.3, petitioner's request for a trial transcript at this time is granted. Petitioner shall file a brief with this Judge in support of all issues raised in the post-trial motion not later than thirty days from receipt of the transcript. Respondent shall file a reply brief with this Judge not later than twenty- one days from receipt of plaintiffs brief. Argument on the issues raised in the post-trial motions, unless waived, shall be held at a time to be later fixed. J. Lawrence J. Neary, Esquire 108-112 Walnut Street PO Box 963 Harrisburg, PA 17108 ~ 3 ~'y' 1 ~' Harvey Freedenberg, Esquire .~ ; ~- ~'z47 McNees, Wallace & Nurick cc(tGcC ~ ~~«C~py. ~' 100 Pine Street Harrisburg, PA 17108 By the Court, J FRANK WILSON, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V, NO. 94-1070 CIVIL TERM CIVIL ACTION -LAW LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., and COMMERCE BANK/HARRISBURG, Defendants IN RE: ARGUMENT ON PLAINTIFF'S-POST TRIAL MOTIONS ORDER OF COURT AND NOW, October 31, 1996, the Court being in receipt of briefs from both plaintiff and defendant, argument is set for MONDAY, NOVEMBER 18, 1996, at 3:30 p.m. In Courtroom No. 3. It Is understood that because Attorney Freedenberg will be in trial in Harrisburg, Michael R. Kelley, Esquire, will argue for the defendants. By the Court, J. Lawrence J. Neary, Esquire Connelly, Reid & Spade PO Box 963 Harrisburg, PA 17108 Harvey Freedenberg, Esquire McNees, Wallace & Nurick 100 Pine Street PO Box 1166 Harrisburg, PA 171082 FRANK WILSON, Plaintiff v. LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 1070 CIVIL 1994 CIVIL ACTION -LAW JURY TRIAL DEMANDED PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF Jt2 ~~ , ~~ -~L-. AND NOW comes the Plaintiff, Frank Wilson, by and through his attorney Lawrence J. Neary and files this Motion For Post-Trial Relief pursuant to Pa. R.C.P. 227.1(a)(1)(2) requesting the Court to enter a judgment in favor of the Plaintiff notwithstanding the verdict and to grant a new trial, and in support thereof avers the following: 1. A jury trial in the above captioned action concluded on May 22, 1996 when the jury returned a "no" answer to Question #1 on the Verdict Slip which asked: "Did Defendants supply the appraisal report for the guidance of Plaintiff in his business transactions?". This concluded the jury's deliberations. 2. Plaintiff had previously submitted requested Points For Charge #2, entitled "Duty of Care" which requested the Court to find, as a matter of law or to issue a binding instruction, "that the Plaintiff is a person to whom the law holds that the Defendants would owe a duty of care". 3. The Court read Plaintiffs requested Points For Charge #2 with the exception of the last sentence referred to in the previous paragraph and Plaintiffs exception thereto was noted on the record at the conclusion of the Court's charge to the jury. 4. Plaintiff submits that the Court was incorrect in refusing to grant the binding instruction requested by the Plaintiff regarding the existence of the duty of care owed by the Defendant to the Plaintiff. 5. Plaintiff submits that the Court erred in submitting said issue, i.e. whether there exists a duty of care between the parties, to the jury when said issue is a matter of law that is for the Court to decide and not for submission to the jury for resolution. 6. Plaintiff requests that all testimony and the charge of the Court be transcribed. WHEREFORE, Plaintiff Frank Wilson requests that the Court enter judgment in his favor notwithstanding the verdict on question #1 on the Verdict Siip and that a new trial be ordered. Respectfully submitted, Date: 5 3v `l ~ CONNELLY REID & SPADE By; La re ce J. ary, Es Attorney for P intiff 108-112 Waln t Street P.O. Box 963 Harrisburg, PA 17108 (717) 238-4776 (717) 238-4793 Pa. I.D. #25827 ^ CERTIFICATE OF SERVICE I, Lawrence J. Neary, Esquire, of Connelly, Reid, & Spade, attorneys for Plaintiff hereby certify that I have on the date shown below, served a copy of the foregoing Plaintiffs Motion For Post-Trial Relief to the person(s) and in the manner indicated below: UNITED STATES FIRST CLASS MAIL, POSTAGE PREPAID Cumberland County Court Administrator Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 George E. Hoffer, Judge Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Harvey Freedenberg, Esquire McNEES, WALLACE & NURICK 100 Pine Street Harrisburg, PA 17108 Date: _~ ~0 ~ By: Respectfully Submitted, CONNELLY, REID & SPADE Lawr~e J. Ne , Esq re Attorney for Plai tiff ~, 106 - 112 Walnut Street P. O. Box 963 Harrisburg PA 17108 (717) 238-4776 (717) 238-4793 - Teiecopier Pa. I.D. No. 25827 i J. A51017/97 FRANK WILSON, Appellant v. LAURENCE A. HIRSH AND CHARLES F. SCHUBERT, ]R., Appellees IN THE SUPERIOR COURT OF PENNSYLVANIA No. 424 Harrisburg 1997 Appeal from the Judgment Entered April 16, 1997, In the Court of Common Pleas of Cumberland County, Civil, No. 1070 CIVIL 1994 J U D G Y S N T ON CONSID~ilT70N W~E'OF, it is now here ordered and adjudged by this Coup that the judgmeru of the Court of Common Pleas Of CUMBERLAND County be, and the Same is hereby AFFIRMED . . ~ BY THE COJR7 Dated February 24, 1998 ]. A51017/97 FRANK WILSON, Appellant v. LAURENCE A. HIRSH AND CHARLES F. SCHUBERT, JR., Appellees IN THE SUPERIOR COURT OF PENNSYLVANIA No. 424 Harrisburg 1997 Appeal from the Judgment Entered April 16, 1997, In the Court of Common Pleas of Cumberland County, Civil, No. 1070 CIVIL 1994 BEFORE: McEWEN, P.J., POPOVICH, and RESTER, JJ. MEMORANDUM: F I L E D FEB 2 4 1998 Appellant, Frank Wilson, has taken this appeal from the judgment entered against him in this professional negligence action which he instituted in the Court of Common Pleas of Cumberland County. We affirm. Appellant filed a complaint for the recovery of damages which he alleged he had incurred as a result of an appraisal of a parcel of real estate negligently performed by appellees, Laurence A. Hirsh and Charles F. Schubert, ]r. After the jury rendered a verdict in favor of appellees and the trial court denied the post verdict motions of appellant, this appeal timely followed. The trial court has provided the following concise summary of the facts relevant to our disposition: Frank Wilson was a partner in the Wilson, Garn & McKee Partnership. In 1983, the partnership bought property on Market Street in Camp Hill. This property is the basis for the ]. A51017/97 present dispute. In 1988 Wilson bought out Garn and McKee, leaving himself as the sole remaining partner. That same year Wilson listed the Market Street property with a realtor and later accepted an offer made by the partnership of Adams/Molinari. In June 1988 George Adams requested the Weinstein-Hirsh Appraisal Groups to perform an appraisal of an office building 1 This partnership later dissolved and hereinafter will be referred to as "Hirsh." which was to be constructed by the Adams/Molinari partnership on the land which it was to buy from Wilson. This appraisal was done between June and October of 1988 and was then forwarded to Commerce Bank, per the request of George Adams, in order to help secure financing for the construction project. The proposed office building project of Adams/Molinari changed between February 1988 and March 1989, when Hampden Township determined that the original specifications would not conform to the zoning regulations. However, Hirsh was never given any information concerning -the site changes, nor was it asked to perform a second appraisal after the site specifications were modified. In or around this same time, Wilson took the place of Molinari in the Adams/Molinari Partnership. In February 1989, Commerce Bank issued a Commitment Letter for the construction financing on the proposed office building. On March 29, 1989, Commerce Bank and the Adams/Wilson partnership closed on a loan for $650,000. Wilson never saw a copy of the completed appraisal done by Hirsh prior to the closing of the loan, although he did see a transmittal letter and summary of the appraisal. Additionally, Wilson never had any contact with Hirsh concerning the appraisal. Furthermore, Hirsh did not know Wilson personally nor did he know Wilson had taken the place of Molinari in the partnership. Moreover, the appraisal did not contain any language suggesting the proposed office building was a good investment for anyone. However, Wilson claimed he relied on this appraisal in making the decision to enter into the proposed office building project. -2- J. A51017/97 Plaintiff requested the following instruction for the jury in its Point for Charge No. 2: The Plaintiff, Frank Wilson, was not in privity with the Defendants, which means that he was not a party to the contract of employment with the Defendants. This, however, does not prevent him from maintaining an action under the legal principle just read to you (Restatement (Second) of Torts § 522) provided that the Plaintiff is considered a beneficiary for whose benefit the information is supplied and the information was intended to influence the Plaintiff in that transaction. It is not necessary that the Plaintiff be known to the Defendants as an individual when the information is supplied. It is enough that the maker of the representation intended to reach and influence either a particular person or persons, known to them, or a group or class of persons, distinct from the much larger class who might reasonably be expected to have access to the information. It is enough that the supplier gives the information for repetition to a certain group or class of persons and Plaintiff proved to be one of them. Thus, the Court finds that the Plaintiff is a person to whom the law holds that the Defendants would owe a duty of care. The Court read the entire point to the jury with the exception of the last sentence. The first question then set forth on the verdict slip submitted to the jury was as follows: "Question No. report for the transactions? Yes If your answer Courtroom and your answer to No. 2." 1: Did Defendants supply the appraisal guidance of Plaintiff in his business No X to Question No. 1 is ono' return to the do not answer any further questions. If Question No. 1 is yes, go on to Question -3- J. A51017/97 In this appeal from the judgment entered in favor of appellees, Hirsh and Schubert, appellant argues that the court erred in its wording of Question No. 1 on the verdict slip. Appellant claims that the language improperly placed the task of determining whether or not appellees owed a duty to appellant upon the jury. We disagree. "[The determination of whether an act or failure to act constitutes negligence, of any degree, in view of all the evidence has always been particularly committed to determination by a jury." Bloom v, DuBois Regional Medical Center, 409 Pa.Super. 83, , 597 A.2d 671, 679-80 (1991). Instantly, as noted in the opinion of the distinguished Judge George E. Hoffer, Question No. 1 presented a mixed question of law and fact under the evidence produced in this case, which included the following: Appellees were requested in June of 1988 to perform an appraisal based on the planned construction of a 9,159 sq. feet building with a net leasable area of 7,500 sq. feet. The building plans were provided to appellees by Mr. Adams, who never advised appellees of the subsequent changes made to those plans on October 18, 1988, as a result of the October 11, 1988, Township meeting. The completed appraisal was forwarded to Commerce Bank by appellees on October 19, 1988, per the instructions of Mr. Adams. The proposed building plan as originally submitted violated the parking provisions of the applicable zoning code and was altered to provide for 6,450 sq. feet of net rental space, resulting in a decrease in rental area of 1050 sq. feet. -4- ]. A51017/97 This information was not conveyed to appellees The completed appraisal expressly provides that one of the basic assumptions made therein was the erection of an office building with a gross area of 9,159 sq. feet and a net leaseable area of 7,500 sq. feet. The Hampden Township Zoning Hearing Board granted preliminary approval on October 12, 1988, and final approval for the building as modified on April 4, 1989. In order to set forth a prima facie case in a negligence action, a plaintiff must establish (1) that he was owed a duty of care; (2) that the duty was breached; (3) that he was injured and (4) that his injuries were proximately caused by the breach of duty. Ell/s v. Sherman, 512 Pa. 14, 18, 515 A.2d 1327, 1328 (1986); Wadde// v. Bowers, 415 Pa.Super. 469, 609 A.2d 847, 849 (1992), a/lo. denied, 533 Pa. 613, 618 A.2d 402 (1992). "Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk and the public interest in the proposed solution." Cruet v. Certain-Teed Corp., 432 Pa.Super. 554, , 639 A.2d 478, 479 (1994), a//o. denied, 541 Pa. 639, 663 A.2d 691 (1995). "'Duty, in any given situation, is predicated on the relationship existing between the parties at the relevant time."' Pittsburgh Nations/ Bank v. Perr, 431 Pa.Super. 580, 584, 637 A.2d 334, 336 (1994), quoting Morena v. South Hills Hea/th System, 501 Pa. 634, 642, 462 A.2d 680, 684 (1983)(emphasis supplied). -5- J. A51017/97 The first special interrogatory asked the jury to determine whether appellees had supplied the real estate appraisal in question for the guidance of appellant in the transaction. This inquiry into the relationship between the parties was necessary as a result of the facts surrounding the employment of appellees. While appellant argued that his position in the Adams/Wilson partnership created a relationship between himself and appellees, the evidence established that: (1) Wilson did not join the partnership until appellees had already completed the appraisal based upon documents supplied to them by Mr. Marks, (2) the appraisal clearly stated that it was based upon the completion of an office building with 7,500 sq. ft. of net rental space, (3) appellees completed the appraisal prior to the partnership making substantial changes to the building plans in order to comply with local zoning regulations, (4) no new appraisal was requested after these changes were made and appellees were never informed of these changes, (5) appellant never saw a complete copy of the appraisal until long after the building was constructed, and 6) appellees had had no contact of any kind with appellant. As we find that, under these circumstances, the trial court properly submitted special interrogatory No. 1 to the jury, we must reject the first argument presented by appellant. -6- J. A51017/97 Appellant next contendsi that the trial court erred in its charge to the jury as a result of its refusal to read the last sentence of appellant's Point for Charge No. 2. Appellant claims that it was reversible error to refuse to instruct the jury that appellees, professional real estate appraisers, owed a duty of care to him as a matter of law. Appellant also argues that appellees must be held accountable to any third party that might foreseeably rely upon an appraisal produced by them, regardless of privity. This argument disregards the factual record in this case, which demonstrates that the real estate appraisal in question was prepared for the benefit of Commerce Bank, based upon a specific set of plans for construction of an office building, in order to assess the financial prospects of such a building project. Appellant did not become a partner in the building project until after the appraisal had already been completed. Moreover, when the building plans were subsequently altered to conform to local zoning regulations, appellees, who had already completed and submitted their appraisal, were never informed of those changes. Further, appellant conceded that he never read the appraisal in its entirety, and instead read only the transmittal letter which summarized the appraisal. It would defy reason to find that appellees 1 Appellant's brief has improperly framed the issues in the Statement of Questions Involved as different from those set forth in the Table of Contents and in the Argument. -7- a , ~ J. A51017/97 could foresee reliance by a third party on a summary of a real estate appraisal which had been rendered inaccurate by changes to the building plans made by the partnership, where those building specifications were specifically set forth in the appraisal and provided an essential basis for the assumptions made therein. Under these circumstances, we find that the trial court did not err in refusing to find that appellees owed a duty to appellant as a matter of law. Having determined that the trial court committed neither an error of law nor an abuse of discretion, we affirm the judgment entered upon the verdict of the jury. Judgment affirmed. -8- ~.. cry- tr> ~,-. -' 4.? ~- ~'` U'~ -' ~~r~ ~` - - ~ ~.._ ~~ + t; ~_ i ,_ !'- ~_ ~~ '~ '' ~ ~} G IN THE SUPERIOR COURT OF PENNSYLVANIA HARRISBURG DISTRICT CERTIFICATE OF CONTENTS OF REMANDED RECORD PA. R.A.P. 2571 AND 2572 THE UNDERSIGNED, Chief Clerk of the Superior Court of Pennsylvania, the said Court being a Court of Record, does hereby certify that annexed to the original hereof is a true and correct copy of the whole and entire record as remanded from said Court, in the following matter: Parts: 4 PARTS Caption & Docket Numbers: FRANK WILSON V LAURENCE A HIRSH AND CHARLES F SCHUBERT, JR NO. 424 HARRISBURG, 1997 (CUMBERLAND CO. NO. 1070 CIVIL 1994) In compliance with Pennsylvania Rules of Appellate Procedure 2571. The date on which the record has been remanded is APR 0 2 ~~~8 An additional copy of this certificate is enclosed with the original hereof, and the Clerk of Prothonotary of the lower court or the head, chairman, deputy or secretary of the government unit is hereby directed to acknowledge receipt of the remanded record by executing such copy at the place indicated and by forthwith returning the same. Chief Clerk -Harrisburg District Superior Court of Pennsylvania RECORD, etc. RECEIVED DATE signature and title • ~ -+- U't ~ ~p CERTIFICATE AND TRANSMITTAL OF RECORD UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (c To the Prothonotary of the Appellate Court to which the within matter has been appealed: SUPERIOR ~7RP OF PEnIl~SYLVANIA THE UNDERSIGNED, Prothonotary of the Court of Common Pleas of C~ERLArID County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Case No. 94-1070 Civil Term; No. 424 HBG 1997 FRANK WILSON VS. WEINSTEIN-HIRSH APPRAISAL GROUP, AND COMMERCE BANK/HBG The documents comprising the record have been numbered from No. 1 to No. 579 and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the appellate court is June 24th, 1997 . (Seal of Court) ~[ Q.~~M~iyt~, ~ I V ~A ~~.Gttr~- Prothonotary An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. RECORD RECEIVED: Date: RECORD Fi~EO iN SUPFR~nR c~uRT JUL 1 71997 (signature & title) NNIiHISBURG ~-,~i~,~-~s ~ s Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of 424 HBG to No. 94-1070 1997 Civil Term in the Commonwealth of Pennsylvania Term, 19 is contained the following: COPY OF Appearance DOCKET ENTRY FRANK WILSON VS. WEINSTEIN-HIRSH APPRAISAL GROUP, AND Cl7NMERCE BANK/HARRISBURG PAGE NO. 1-112 Please see previous appeal. 113-120 May 17, 1995, Defendants' Motion for Judgment on the Pleadings. 121 May 17, 1995, Praecipe for listing case for Argument by Laurence A. Hirsh, Esq., and Charles F. Schubert, Esq. 122-132 July 10, 1995, Order of Court In Re: Application for Relief of Commerce Bank in the Nature of a Motion to Quash Appeal as Interlocutory - Superior Court grant Motion to Quash Appeal - Appellant's request for opportunity to Petition Lower Court is denied - per curiam 134-139 July 25, 1995, Motion for Approval of Court for Discontinuance of Count III of the Amended Complaint. 133 July 25, 1995, Rule to Show Cause In Re: Motion for Approval of Court for Discontinuance of Count III of the Amended Complaint -Entered upon Defendants Rule returnable 7 days after service By Judge George E. Hoffer,J Notice mailed 7/25/95 140 July 25, 1995, Praecipe for listing a case for Argument by Lawrence J Neary, Esq. 141-143 August 8, 1995, Stipulation. 145-153 August 15, 1995, Motion to Make Rule Absolute. 144 August 17, 1995, Order of Court In Re: Plaintiff's Motion to make Rule Absolute - Count III of Amended Complaint against Commerce Bank/Harrisburg be marked discontinued By Judge George E. Hoffer, J. Notice mailed 8/17/95 154-155 October 2, 1995, Order of Court dated 10/2/95 In Re: Defendant's Motion for judgment on the pleadings Denied By George E. Hoffer, J. Notice mailed 10/2/95 156 January 25, 1996, Praecipe for listing case for Trial by Lawrence J. Neary, Esq. 157 February 22, 1996, Order of Court dated 2/20/96 Prothonotary to relict case for May Trial Term By Harold E. Sheely, PJ copies mailed 2/22/96 158-160 May 10, 1996, Pretrial Conference dated 5/1/96 By George E. Hoffer, J. 161-165 May 22, 1996, Verdict - Jury Selected 5/20/96. 166-168 May 31, 1996, Plaintiff's Motion for Post-Trial Relief. 169 June 4, 1996, Order of Court dated 6/3/96 In Re: Plaintiff's Post Trial Motions - Request for Trial Transcript -Granted By George E. Hoffer, J. Copies mailed 6/5/96 170-193 September 18, 1996, Transcript filed. 194-404 September 18, 1996, Transcript filed. 405-515 September 18, 1996, Transcript filed. 516 November 11, 1996, Order of Court dated 10/31/96 In Re: Argument on Plaintiff's Post Trial Motions - Argument 11/18/96 3:30 AK CR 3 By George E. Hoffer, J. Copies mailed 11/1/96 Cumberland 4~i 0 s 0 rn `7 N a w. a a -, 0 0 ~ y ~ o~ ~. H ;.I._ .n 0 k cg .. ~ ~ N ~ v a ~o 0 z n v 0 c a n N y ~. y o ~~ o i o 0 ~ ~ C ~ ~' -~ -~ a a II i` • CERTIFICATE AND TRANSMITTAL OF RECORD UNDER PENNSYLVANIA RULE OF APPELLATE_PROCEDURE 1931 (c To the Prothonotary of the Appellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYLVANIA THE UNDERSIGNED, Prothonotary of the Court of Common Pleas of CUMBERLAND County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Case No. 94-1070 Civil Term; No. 224 Hbg. 199~.s FRANK WILSON VS. WEINSTEIN-HIRSH APPRAISAL GROUP, AND COMMERCE BANK/HBG The docume is comprising the record have been numbered from No. 1 to No. 112 and attached hereto as Exhibit A is a list of the docume is correspondingly numbered and identified with reasonable definit ness, including with respect to each document, the number of page comprising the document. The date o which the record has been transmitted to the appellate court is April 12, 1995 (Seal of Court) Prothonotary An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. RECORD RECEIVED: RECORD FILED IN SUPERIOR COURT APR 1 91995 Date : Received in Superior Court ApR 13 1995 (si title) HARRISBUR /- P~ • Commonwealth of Pennsylvania County of Cumberland CiZ~e No. 2~"~ Hbg. 1995 ss: In TESTIMONY WHEREOF, I have hereunto this 'I'~aelfth I, Lawrence E. Welker ,Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Frank Wilson Plaintiff, and Weinstein-Hirsh Appraisal Group, and Commerce Bank/Harrisburg, Defendant , as the same remains of record before the said Court at No. 94-1070 of C~_vil Term, A. D. 19 set my hand d affixed the seal of said Court day off„ Aril _ A. p., 19~-. Prothonotary I, Harr? r3 R _ .rh~7 Y President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that Lawrence E. Welker. Prothonotary by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Cumberland in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit ar@ and ought to be given as well in Courts of judica ure as elsewhere, and that the said record, certificate and attestation are in due form of law and ma e y the pro er officer. Pr side t .ludge Commonwealth of Pennsylvania County of Cumberland ss: I, Lawrence E. Welker ,Prothonotary of the Court of Common Pleas in and for the skid County, do certify that the Honorable Harold E. Sheely by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thrreof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessipns of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full fhith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this ~l?~'~y of April A.D. I.Q 95 . Prothonotary s^-, ~, r ,. ~~~ i C~ . . FRANK WILSON IN THE COIIRT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA • WEINSTEIN - HIRSH APPRAISAL CIVIL ACTION - LAW GROUP, and COMMERCE BANK/ HARRISBIIRG, : Defendants JURY TRIAL DEMANDED NOTICE TO DEFEND AND CLAIM RIGHTS You have been sued in Court. If you wish to defend against the claims set forth in the following papers, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator, Fourth Floor Cumberland County Court House 1 Courthouse Square Carlisle, Pennsylvania 17013-3387 Telephone: (717) 240-6200 Respectfully submitted, Date : ~~ ~~ ~ CONNELLY, REID, & SPADE By: L ence Neary, Es torney r Plainti P.O. Bo 63 Harrisburg, PA 171 (717) 238-4776 Pa. I.D. No. 25827 • FRANK WILSON v. Plaintiff WEINBTEIN - HIRSH APPRAISAL GROIIP, and COMMERCE BANK/ HARRISBURG, Defendants n IN THE COURT OF COMMON PLEAB CUMBERLAND COUNTY, PENNBYLVANIA No. CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW comes the Plaintiff, Frank Wilson, by and through his attorney, Lawrence J. Neary, Esquire, and respectfully represents as follows: 1. Plaintiff, Frank Wilson, is an adult individual, residing at 511 Springhouse Road, Hampden Township, Cumberland County, Pennsylvania. 2. Defendant, Weinstein - Hirsh Appraisal Group is a Pennsylvania corporation with its offices located at 4775 Linglestown Road, Harrisburg, Dauphin County, Pennsylvania. 3. Defendant, Commerce Bank/Harrisburg, is a Pennsylvania state banking institution having its offices located at 100 Senate Avenue, Camp Hill, Cumberland County, Pennsylvania 17011-8599. 4. Defendant, Weinstein - Hirsh Appraisal Group, at all times relevant hereto, was engaged in the business of providing real estate appraisals. 5. Prior to October of 1988, Defendant, Weinstein - Hirsh Appraisal Group, was requested to perform an appraisal for a proposed office building for the premises now known as 3507 Market 2 • . '~ Street, Hampden Township, Cumberland County, Pennsylvania by George J. Adams. 6. At said time, said premises was titled in the name of the Wilson, Garn & McKee, a Pennsylvania partnership of which Frank Wilson and Gary Garn were the remaining partners. 7. Said appraisal was requested to establish the market value of the real estate and proposed construction as completed, and for the purpose of obtaining financing for the construction of the office building proposed for the site which was to be constructed by a construction company owned by George J. Adams. 8. Pursuant to said request, an appraisal report was prepared and certified by the Defendant, Weinstein - Hirsh Appraisal Group, and said appraisal report was addressed to Commerce Bank on October 19, 1988. Said appraisal established a market value of the proposed office building when completed to be Nine Hundred Twenty- Five Thousand ($925,000.00) Dollars. 9. Thereafter, pursuant to a financing commitment letter from Commerce Bank dated February 14, 1989 to Wilson, Garn & McKee, a Pennsylvania general partnership, comprised of partners, Plaintiff, Frank Wilson and George J. Adams, apre-closing requirement was the submission of an appraisal for a 9,500 square foot office building which would have a value of Eight Hundred Thousand ($800,000.00) Dollars upon completion of the construction. e 10. The Construction Loan and Security Agreement entered between the partnership of Wilson, Garn & McKee and Commerce Bank dated March 29, 1989 provided that as a condition precedent to the disbursement of funds by Commerce Bank on the construction loan to the partnership of Wilson, Garn & McKee, was required to provide, "an appraisal of the property and the improvements prepared by an appraiser, in form and amount, satisfactory to bank;" (Paragraph 9(k)) of said Construction Loan Agreement. 11. Plaintiff, prior to the closing on said Construction Loan Agreement which occurred on March 29, 1989 and for a substantial time thereafter, did not receive a copy of said appraisal and believes and therefore avers that the appraisal prepared by Defendant, Weinstein - Hirsh Appraisal Group dated October 29, 1988 was submitted to Defendant, Commerce Bank, to satisfy the appraisal requirements to Commerce Bank in the financing commitment and the Construction Loan Agreement. 12. In reliance upon the representation as to the value of the proposed office building, which established the economic feasibility of the project and in reliance upon Commerce Bank's acceptance of said appraisal as satisfactory, the loan closing took place with Commerce Bank on March 29, 1989 and thereafter said office building was constructed on the premises. 3 • • ~. 13. As a result of Plaintiff's reliance on the appraisal as prepared by Defendant, Weinstein - Hirsh Appraisal Group which was submitted to and approved by Commerce Bank, Plaintiff transferred his interest in the real estate known as 3507 Market Street, Hampden Township, Cumberland County, Pennsylvania to the partnership, Wilson, Garn & McKee, and executed a Construction Loan in the amount of Six Hundred Thirty-Five Thousand ($635,000.00) Dollars in favor of Commerce Bank which also required his personal guaranty. 14. As a further result of Plaintiff's reliance on the appraisal as prepared by Defendant, Weinstein - Hirsh Appraisal Group and which was submitted and approved by Commerce Bank, Plaintiff, individually and as a partner, made the necessary financial commitments to begin a construction project allegedly worth Nine Hundred Twenty-Five Thousand ($925,000.00) Dollars which in fact was worth Six Hundred Thousand ($600,000.00) Dollars, resulting in a loss of Three Hundred Twenty-Five Thousand ($325,000.00) Dollars to the Plaintiff. 15. Said appraisal as performed by Defendant, Weinstein - Hirsh Appraisal Group was based on the assumption that the proposed building would contain 9,159 square feet and a net leasable area of 7,500 square feet. 4 `~ • C7 16. However, at all times relevant hereto, the site plan as approved by the Hampden Township Zoning Hearing Board on October 12, 1988, prior to the appraisal date, allowed for an office building containing 6, 450 square feet of net rentable office area based on the number of parking spaces required which was confirmed in the final approval of the plan given on April 4, 1989. 17. On or about April 3, 1992, Plaintiff, Frank Wilson, was advised that the Construction Mortgage and Note were not being paid in a timely manner to Commerce Bank by the managing partner of the partnership known as Wilson, Garn & McKee who, by designation, was ;. George J. Adams who was exclusively handling all financial matters for the partnership. 18. Shortly thereafter, Plaintiff, Frank Wilson, while providing additional personal funds to cure the default, and in the course of conversations with representatives of Commerce Bank, was advised that the value of said office building in 1988 and in 1992 was substantially less than as appraised prior to construction and was in fact valued less than the balance on the Construction Mortgage which at the time was approximately Six Hundred Thirty Thousand ($630,000.00) dollars. 19. After the loan closing, Plaintiff attempted to obtain a copy of said appraisal which was not provided to him and as recently as January of 1993 was not made available to him by 5 Defendant, Weinstein - Hirsh Appraisal Group as per the attached correspondence dated January 4, 1993 which is attached hereto and marked as Exhibit A. 20. As a further result of Plaintiff's reliance on the appraisal as prepared by Defendant, Weinstein - Hirsh Appraisal Group and which submitted and approved by Commerce Bank, Plaintiff, solely and without any contribution from his partner George J. Adams, has been forced to contribute the sum of Thirty-Nine Thousand ($39,000.00) Dollars as additional funding to the partnership based on his individual guaranty to address the negative cash flow and is being forced to contribute the additional sum of One Thousand Thirty-Three ($1,133.00) Dollars per month for operating expenses which represents a deficiency brought on in part by the reduced amount of the leasable space and the incorrect appraisal of the building's rental value on a per square foot basis. This deficiency may continue for an indefinite time into the future. 21. As a further result of Plaintiff's reliance on the appraisal as prepared by Defendant, Weinstein - Hirsh Appraisal Group and which was submitted and approved by Commerce Bank, Plaintiff was on June 24, 1992 required to execute an additional Note in the amount of Seventeen Thousand Six Hundred Thirty-Six Dollars and Thirty Cents ($17,636.30) secured by a Mortgage on his 6 ~ ~ residence located at 511 Springhouse Road, Hampden Township, Cumberland County, Pennsylvania and on other property owned by the Plaintiff located at 5401 Jonestown Road, Lower Paxton Township, Dauphin County, Pennsylvania to remedy the delinquency in the Mortgage because of his inability to refinance the Market Street project due to its then present value. COUNT I Frank Wilson v. Weinstein - Hirsh Appraisal c3roup 22. Paragraphs 1 through 21 are hereby incorporated by reference herein. 23. Defendant, Weinstein - Hirsh Appraisal Group, owed a duty to the Plaintiff to properly and correctly appraise the value of the proposed construction in accordance with generally accepted appraisal methods. 24. Defendant violated that duty to the Plaintiff by not properly preparing said appraisal, but rather doing so negligently, carelessly, unskillfully and thereby misrepresenting the value of the proposed construction in excess of its actual value. 25. Plaintiff believes and therefore avers that a properly completed appraisal of said premises in October of 1988 would have reflected a value of Six Hundred Thousand ($600,000.00) Dollars for the proposed construction, as opposed to the appraised value of 7 • Nine Hundred Twenty-Five Thousand ($925,000.00) Dollars provided by the Defendant. WHEREFORE, Plaintiff demands Judgment against the Defendant, Weinstein - Hirsh Appraisal Group in an amount in excess of $20,000.00 plus interest and costs of suit. COIINT II Frank Wilson v. Weinstein - Hirsh A~~raisal Group 26. Paragraph 1 through 21 are hereby incorporated by reference herein. 27. Plaintiff, Frank Wilson, is a third party beneficiary of the contractual obligation imposed upon Defendant, Weinstein - Hirsh Appraisal Group, to prepare an appraisal for the proposed construction at 3507 Market Street, Hampden Township, Cumberland County, Pennsylvania. 28. Plaintiff believes and therefore avers that the Defendant failed to perform said appraisal in accordance with generally accepted appraisal principles thereby breaching their contractual obligation to perform said appraisal in accordance with accepted standards. 29. As a result of said breach, Plaintiff, a third party beneficiary of said contract, has suffered losses as set forth 8 • above and will continue to experience said losses through time of trial. WHEREFORE, Plaintiff demands Judgment against the Defendant in an amount in excess of $381,636.60 plus interest and costs of suit. COIINT III Frank Wilson v. Commerce Bank 30. Paragraphs 1 through 21 are hereby incorporated by reference herein. 31. Defendant, Commerce Bank/Harrisburg, knew or should have known that the appraisal prepared by the Defendant, Weinstein - Hirsh Appraisal Group, and submitted to Commerce Bank to satisfy the financing condition on the loan given to the Plaintiff, would be relied upon by the Plaintiff in determining whether the project was economically feasible and justified. 32. Defendant, Commerce Bank/Harrisburg, by accepting said appraisal in satisfaction of the requirements contained in the Construction Loan Agreement, thereby ratified and confirmed the appraisal as performed by Defendant, Weinstein - Hirsh Appraisal Group thereby confirming the financial viability of the project. 33. Defendant, Commerce Bank/Harrisburg, owed a duty to the Plaintiff to carefully review the findings, assumptions and 9 ~Q conclusions of the appraisals submitted to them on behalf of the Plaintiff. 34. Defendant, in violating that duty, did not properly review the contents, the analysis and findings of said appraisal and thereby failed to ascertain that the conclusion of value was flawed due in part, among other things, to the calculations based upon incorrect net leasable space for the premises and the erroneous assignment of the rental value on a per square foot basis. 35. As a result of the aforesaid conduct, Defendant failed to exercise the ordinary skill and knowledge as required by commercial lenders in detriment to the Plaintiff. NHEREFORE, Plaintiff demands Judgment against the Defendant, Commerce Bank/Harrisburg, in an amount in excess of $20,000.00 plus interest and costs of suit. Date : /T~~~ l~i~ Respectfully Submitted, CONNELLY, REID & SPADE By: ence eary, squire torn for Pla' iff 108 - 12 Walnut treet P. O. Box 963 Harrisburg PA 17108 (717) 238-4776 Pa. I.D. No. 25827 10 (~ VERIFICATION I, Frank Wilson, hereby acknowledge that I am a Plaintiff in the foregoing action; that I have read the foregoing Complaint and the statements made therein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date : / l I ~ 93 ._-~ ~~ Frank Wilson ~~ • ALL-STATE LEGAL SUPPLY CO.. 1-800-222-0510 EOtt RECVCLEO `.~ Ex~4i13~T 1"~ f~ hirsh ualuatipn group January 4, 1993 Mr. Frank Wilson 511 Springhouse Road Camp Hill, PA 17011 Dear Mr. Wilson: r„.. SINCE 1980 LAURENCE A. HIRSH, MAI CHRISTINE L. FAKE • JEFFREIY L. WAkTERS ' LISA C. McKEAND MARK E. LETSCHER, MS JENNIFER S. LIS JAMES W.B. SPRAGUE CHESTER W. GINSBERG CURTIS H. O'HILL I am in receipt of your letter dated December 30, 1992 requesting a copy of our appraisal of 3507 Market Street, Camp Hill, PA dated October 19, 1988. As you know, our appraisal was addressed to Mr. Dwayne Beech of Commerce Bank. We were hired by George Adams and the property was under contract to Adams-Molinari Properties at the time of the appraisal. While I can appreciate you desire to acquire a copy of the appraisal, I am unable to provide it to you without the express consent of Mr. Adams. I suggest you contact either Mr. Adams or Commerce Bank to acquire a copy or have a court subpoena the appraisal in which case I am then required to release it to the court. I am sorry that I cannot help you, however the Code of Ethics of The Appraisal Institute strictly prohibits me from breaching the confidentiality of the appraiser/client relationship in the manner you request. I trust that you will discontinue pressuring me for a copy of the appraisal since I have now indicated on several occasions that I cannot provide it for you and maintain compliance with our Code of Ethics. Yours truly, hirsh valuation group gy. ~~ti=~ Laurence A. irs AI, esident LAH/sa cc: George Adams Al Bradley, Commerce Bank 4775 linglestown road • f,arrisburg, pa. 17112 phone 717-652-9800 • fax 717-652-8267 ~~ i ~ n C~ C~ ~~ -cam ~~1 v ~ ~= _.: ~' v,, ~ _ ~. ~ ~, ~ ' ~ W ~~'. Q C:> :~~: - ,~s ~' ~ _ A ~~ t A rn ~ ^~ Frank Wilson In the Court of Common P1_eas of Cumberland County, Pennsylvania vs Weinstein-Hirsh Appraisal Group No. 1070 Civil Term, 1994 and Commerce Bank Harrisburg Complaint in Civil Action Law and Notice to Defend and Claim Rights Wesley Cook, Deputy Sheriff, who being duly sworn according to law, says on March 9, 1994 at 1:30 o'clock P.M., E.S.T., he served a true copy of Complaint in Civil Action Law and Notice to Defend and Claim Rights, in the above entitled action upon one of the within named defendants, to wit: Commerce Bank Harrisburg by making known unto Beck Bacher Compliance Officer for Commerce Bank Harrisburg at 100 Senate Avenue, Camp Hill, Cumberland County, Pennsylvania, its contents and at the same time handing to her personally the said true and attested copy of the same. R. Thomas Kline, Sheriff, who being duly sworn according to law, says he made diligent search and inquiry for one of the within named defendants, to wit: Weinstein-Hirsh Appraisal Group but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Dauphin County, Pennsylvania to serve the within Complaint in Civil Action Law and Notice to Defend and Claim Rights. DAUPHIN COUNTY RETURN: I William H. Livingston, Sheriff of the County of Dauphin, Commonwealth of Pennsylvania, do hereby certify and return that I made diligent search and inquiry for Weinstein-Hirsh Appraisal. Group the defendant named in the within Complaint and that I an unable to find them in the County of Dauphin and therefore return same NOT FOUND this 15th day of March 1994. Hirsh Valuation Group is located at 4775 Linglestown Road, Harrisburg, Pa and they are not the same company. So answers: William H. Livingston Sheriff of Dauphin County, Pennsylvania. Dauphin County return hereto attached Sheriff's Costs: So answers: Docketing 18.00 Service 8.40 -: :- : Surcharge 4.00 R. mHomas K 'ne, Sheriff Out of County 5.00 L'-~ Dauphin Co. 25.50 by ~ 60.90 Pd.by Atty. 3-15-94 eputy Sworn and subscribed to before me t his ~ / .a~- day o f 7Yl,li.r,ol~ 1994 A.D. ~ ~~ ` Pr.othonot~r~ ~s +s is-a ' • SHERIFF'S RETURN No. 1070 Civil 1994 PAGE 433 COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN I, William H. Livingston, Sheriff of the County of Dauphin, Commonwealth of Pennsylvania, do hereby certify and return that I made diligent search and inquiry for Weinstei-z-Hirsh Appraisal Group the defendant named in the within Complaint and that I am unable to find them in the County of Dauphin and therefore return same NOT FOUND this 15th day of March 19 94 Hirsh Valuation Group is located at 4775 Linglestown Road, Harrisburg, Pa. and they are not the same company. So Answers Sheriff of Dauphin County, Penna. l~ Sworn and subscribed to 4~ ~G ~ ~SO~ S ~ ~~T~'auS `;~'SONO OZTd .~ ,~- ~.i ~h66T ~{~.zsW3e ~~p u~ST sTU-, ~,,, ,__ ("n ~", "`;r...~J :.ei t...~ .~.~>.....at3:_. `,,..sL.~, ~~ 3 s71 .~,tyitf l•i ' ~"~Q. ~v v1u~ Ci ~~~~131 ~~.rct ~ ... a• ~ Frank Wilson '~ S. Weinstein - Hirsh Appraisal Group • Vc. 1070 Civil Term _1994 :~__~~ ~;ow, March 07, 1994 .9._..., T, S ~~,__'- O. C~ f3~"=~~ CD~"`t'1'°-. ?~, do Dauphin Coca: t~ :o _.__~~.c -=is %Y=~ ..-~v c.-~:t~ ~..: ~:^~ -~ of ~~-~ ae^.3 of C'.:.~::eraaa C~i:::9. Via. ~_ •~roa _ '- .~~~ v :ar:C:a3 :a SO a.:TwGZ, Swan and r~isc~ri ~cxe . _~ .^,~ ~v ai 1 a ~n...:%r pf COti32Lp~ ~7.. C.^.SiJ S~~TIC I~fIL?.a G~. ~~ : 'i~rl vil S 1~ .. ,.• FRANK WILSON Plaintiff V. WEINSTEIN - HIRSH APPRAISAL GROUP, and COMMERCE BANK/ HARRISBURG, Defendants You have been sued in Court. If you wish to defend against the claims set forth in the following papers, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. NOTICE TO DEFEND AND CLAIM RIGHTS YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator, Fourth Floor Cumberland County Court House 1 Courthouse Square Carlisle, Pennsylvania 17013-3387 Telephone: (717) 240-6200 Date: ~~~ ~~ ~~ By~ ~-=-~. IN THE COIIRT OF COMMON PLEAS CUMBERLAND COUNTY, PENN/~SYLVANIA No . / ~ ~ ~ --~ /GI GI ~~~ CIVIL ACTION - LAW JIIRY TRIAL DEMANDED Respectfully submitted, CONNELLY, REID,~,& SPADE Neary, E ~r Plainti TRUE CQP'Y FROM RECO~RR? P . O . Boxii"3 6 3 !R Testi 4Yher8of, I fi6f8 Ot1tJ S6t t18fld Harrisburg, PA 171 ~ ~ (717) 238-4776 BEtd t S6d! Of d 1t Carlisle, Pet. Pa . I . D . No . 2 5 8 2 7 h ~ ~~,VC--~ 19~ ~~ FRANR WILSON v. • Plaintiff WEINSTEIN - HIRSH APPRAISAL GROIIP, and COMMERCE BANR/ IiARRISBURG, Defendants • IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. CIVIL ACTION - LAW JIIRY TRIAL DEMANDED COMPLAINT AND NOW comes the Plaintiff, Frank Wilson, by and through his attorney, Lawrence J. Neary, Esquire, and respectfully represents as follows: 1. Plaintiff, Frank Wilson, is an adult individual, residing at 511 Springhouse Road, Hampden Township, Cumberland County, Pennsylvania. 2. Defendant, Weinstein - Hirsh Appraisal Group is a Pennsylvania corporation with its offices located at 4775 Linglestown Road, Harrisburg, Dauphin County, Pennsylvania. 3. Defendant, Commerce Bank/Harrisburg, is a Pennsylvania state banking institution having its offices located at 100 Senate Avenue, Camp Hill, Cumberland County, Pennsylvania 17011-8599. 4. Defendant, Weinstein - Hirsh Appraisal Group, at all times relevant hereto, was engaged in the business of providing real estate appraisals. 5. Prior to October of 1988, Defendant, Weinstein - Hirsh Appraisal Group, was requested to perform an appraisal for a proposed office building for the premises now known as 3507 Market /9 _. _ __ • Street, Hampden Township, Cumberland County, Pennsylvania by George J. Adams. 6. At said time, said premises was titled in the name of the Wilson, Garn & McKee, a Pennsylvania partnership of which Frank Wilson and Gary Garn were the remaining partners. 7. Said appraisal was requested to establish the market value of the real estate and proposed construction as completed, and for the purpose of obtaining financing for the construction of the office building proposed for the site which was to be constructed by a construction company owned by George J. Adams. 8. Pursuant to said request, an appraisal report was prepared and certified by the Defendant, Weinstein - Hirsh Appraisal Group, and said appraisal report was addressed to Commerce Bank on October 19, 1988. Said appraisal established a market value of the proposed office building when completed to be Nine Hundred Twenty- Five Thousand ($925,000.00) Dollars. 9. Thereafter, pursuant to a financing commitment letter from Commerce Bank dated February 14, 1989 to Wilson, Garn & McKee, a Pennsylvania general partnership, comprised of partners, Plaintiff, Frank Wilson and George J. Adams, a pre-closing requirement was the submission of an appraisal for a 9,500 square foot office building which would have a value of Eight Hundred Thousand ($800,000.00) Dollars upon completion of the construction. . 2 ~~ ,~ .. 10. The Construction Loan and Security Agreement entered between the partnership of Wilson, Garn & McKee and Commerce Bank dated March 29, 1989 provided that as a condition precedent to the disbursement of funds by Commerce Bank on the construction loan to the partnership of Wilson, Garn & McKee, was required to provide, "an appraisal of the property and the improvements prepared by an appraiser, in form and amount, satisfactory to bank;" (Paragraph 9(k)) of said Construction Loan Agreement. 11. Plaintiff, prior to the closing on said Construction Loan Agreement which occurred on March 29, 1989 and for a substantial time thereafter, did not receive a copy of said appraisal and believes and therefore avers that the appraisal prepared by Defendant, Weinstein - Hirsh Appraisal Group dated October 29, 1988 was submitted to Defendant, Commerce Bank, to satisfy the appraisal requirements to Commerce Bank in the financing commitment and the Construction Loan Agreement. 12. In reliance upon the representation as to the value of the proposed office building, which established the economic feasibility of the project and in reliance upon Commerce Bank's acceptance of said appraisal as satisfactory, the loan closing took place with Commerce Bank on March 29, 1989 and thereafter said office building was constructed on the premises. 3 ~~ ~' ~ • 13. As a result of Plaintiff's reliance on the appraisal as prepared by Defendant, Weinstein - Hirsh Appraisal Group which was submitted to and approved by Commerce Bank, Plaintiff transferred his interest in the real estate known as 3507 Market Street, Hampden Township, Cumberland County, Pennsylvania- to the partnership, Wilson, Garn & McKee, and executed a Construction Loan in the amount of Six Hundred Thirty-Five Thousand ($635,000.00) Dollars in favor of Commerce Bank which also required his personal guaranty. 14. As a further result of Plaintiff's reliance on the appraisal as prepared by Defendant, Weinstein - Hirsh Appraisal Group and which was submitted and approved by Commerce Bank, Plaintiff, individually and as a partner, made the necessary financial commitments to begin a construction project allegedly worth Nine Hundred Twenty-Five Thousand ($925,000.00) Dollars which in fact was worth Six Hundred Thousand ($600,000.00) Dollars, resulting in a loss of Three Hundred Twenty-Five Thousand ($325,000.00) Dollars to the Plaintiff. 15. Said appraisal as performed by Defendant, Weinstein - Hirsh Appraisal Group was based on the assumption that the proposed building would contain 9,159 square feet and a net leasable area of 7,500 .square feet. 4 Zr • 16. However, at all times relevant hereto, the site plan as approved by the Hampden Township Zoning Hearing Board on October 12, 1988, prior to the appraisal date, allowed for an office building containing 6,450 square feet of net rentable office area based on the number of parking spaces required -which was confirmed in the final approval of the plan given on April 4, 1989. 17. On or about April 3, 1992, Plaintiff, Frank Wilson, was advised that the Construction Mortgage and Note were not being paid in a timely manner to Commerce Bank by the managing partner of the partnership known as Wilson, Garn & McKee who, by designation, was George J. Adams who was exclusively handling all financial matters for the partnership. 18. Shortly thereafter, Plaintiff, Frank Wilson, while providing additional personal funds to cure the default, and in the course of conversations with representatives of Commerce Bank, was advised that the value of said office building in 1988 and in 1992 was substantially less than as appraised prior to construction and was in fact valued less than the balance on the Construction Mortgage which at the time was approximately Six Hundred Thirty Thousand ($630,000.00) Dollars. 19. After the loan closing, Plaintiff attempted to obtain a copy of said appraisal which was not provided to him and as recently as January of 1993 was not made available to him by 5 ~3 ~ ~ Defendant, Weinstein - Hirsh Appraisal Group as per the attached correspondence dated January 4, 1993 which is attached hereto and marked as Exhibit A. 20. As a further result of Plaintiff's reliance on the appraisal as prepared by Defendant, Weinstein - Hirsh-Appraisal Group and which submitted and approved by Commerce Bank, Plaintiff, solely and without any contribution from his partner George J. Adams, has been forced to contribute the sum of Thirty-Nine Thousand ($39,000.00) Dollars as additional funding to the partnership based on his individual guaranty to address the negative cash flow and is being forced to contribute the additional sum of One Thousand Thirty-Three ($1,133.00) Dollars per month for operating expenses which represents a deficiency brought on in part by the reduced amount of the leasable space and the incorrect appraisal of the building's rental value on a per square foot basis. This deficiency may continue for an indefinite time into the future. 21. As a further result of Plaintiff's reliance on the appraisal as prepared by Defendant, Weinstein - Hirsh Appraisal Group and which was submitted and approved by Commerce Bank, Plaintiff was on June 24, 1992 required to execute an additional Note in the amount of Seventeen Thousand Six Hundred Thirty-Six Dollars and Thirty Cents ($17,636.30) secured by a Mortgage on his 6 7 f • residence located at 511 Springhouse Road, Hampden Township, Cumberland County, Pennsylvania and on other property owned by the Plaintiff located at 5401 Jonestown Road, Lower Paxton Township, Dauphin County, Pennsylvania to remedy the delinquency in the Mortgage because of his inability to refinance the Market Street project due to its then present value. COIINT I Frank Wilson v. Weinstein - Hirsh Appraisal Group 22. Paragraphs 1 through 21 are hereby incorporated by reference herein. 23. Defendant, Weinstein - Hirsh Appraisal Group, owed a duty to the Plaintiff to properly and correctly appraise the value of the proposed construction in accordance with generally accepted appraisal methods. 24. Defendant violated that duty to the Plaintiff by not properly preparing said appraisal, but rather doing so negligently, carelessly, unskillfully and thereby misrepresenting the value of the proposed construction in excess of its actual value. 25. Plaintiff believes and therefore avers that a properly completed appraisal of said premises in .October of 1988 would have reflected a value of Six Hundred Thousand ($600,000.00) Dollars for the proposed construction, as opposed to the appraised value of ~~ • Nine Hundred Twenty-Five Thousand ($925,000.00) Dollars provided by the Defendant. WHEREFORE, Plaintiff demands Judgment against the Defendant, Weinstein - Hirsh Appraisal Group in an amount in excess of $20,000.00 plus interest and costs of suit. COIINT II Frank Wilson v. Weinstein - Hirsh Appraisal Group 26. Paragraph 1 through 21 are hereby incorporated by reference herein. 27. Plaintiff, Frank Wilson, is a third party beneficiary of the contractual obligation imposed upon Defendant, Weinstein - Hirsh Appraisal Group, to prepare an appraisal for the proposed construction at 3507 Market Street, Hampden Township, Cumberland County, Pennsylvania. 28. Plaintiff believes and therefore avers that the Defendant failed to perform said appraisal in accordance with generally accepted appraisal principles thereby breaching their contractual obligation to perform said appraisal in accordance with accepted standards. 29. As a result of said breach, Plaintiff, a third party beneficiary of said contract, has suffered losses as set forth 8 ~~ above and will continue to experience said losses through time of trial. WHEREFORE, Plaintiff demands Judgment against the Defendant in an amount in excess of $381,636.60 plus interest and costs of suit. COUNT III Frank Wilson v. Commerce Bank 30. Paragraphs 1 through 21 are hereby incorporated by reference herein. 31. Defendant, Commerce Bank/Harrisburg, knew or should have known that the appraisal prepared by the Defendant, Weinstein - Hirsh Appraisal Group, and submitted to Commerce Bank to satisfy the financing condition on the loan given to the Plaintiff, would be relied upon by the Plaintiff in determining whether the project was economically feasible and justified. 32. Defendant, Commerce Bank/Harrisburg, by accepting said appraisal in satisfaction of the requirements contained in the Construction Loan Agreement, thereby ratified and confirmed the appraisal as performed by Defendant, Weinstein - Hirsh Appraisal Group thereby confirming the financial viability of the project. 33. Defendant, Commerce Bank/Harrisburg, owed a duty to the Plaintiff to carefully review the findings, assumptions and 9 h i • conclusions of the appraisals submitted to them on behalf of the Plaintiff. 34. Defendant, in violating that duty, did not properly review the contents, the analysis and findings of said appraisal and thereby failed to ascertain that the conclusion of value was flawed due in part, among other things, to the calculations based upon incorrect net leasable space for the premises and the erroneous assignment of the rental value on a per square foot basis. 35. As a result of the aforesaid conduct, Defendant failed to exercise the ordinary skill and knowledge as required by commercial lenders in detriment to the Plaintiff. WHEREFORE, Plaintiff demands Judgment against the Defendant, Commerce Bank/Harrisburg, in an amount in excess of $20,000.00 plus interest and costs of suit. Date : /i ~/.~ J~% ~ r Respectfully Submitted, CONNELLY, REID & SPADE gy ; ,. ence eary, squire ~ torn for Pla' iff 108 - 12 Walnut treet P. O. Box 963 Harrisburg PA 17108 (717) 238-4776 Pa. I.D. No. 25827 to I, Frank Wilson, hereby acknowledge that I am a Plaintiff in the foregoing action; that I have read the foregoing Complaint and the statements made therein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date: ~ /; ~~ 193 ~~ rn ~~ Frank Wilson ~~ •` .LL-STATE LEGAL SUPPLY CO.. 1-800-222-0510 ED11 RECYCLED `..~.~ • ~~ ., 11ir~sh valuation group January 4, 1993 . • ,,,. Mr. Frank Wilson 511 Springhouse Road Camp Hill, PA 17011 Dear Mr. Wilson: C7 SINCE 1960 LAURENCE A. HIRSH, MAI CHRISTINE L FAKE JEFFREY L. WALTERS LISA C. MCKEAND MARK E. LETSCHER, MS JENNIFER S. LIS JAMES W.B. SPRAGUE CHESTER W. GINSBERG CURTIS H. O'HILL I am in receipt of your letter dated December 30, 1992 requesting a copy of our appraisal of 3507 Market Street, Camp Hill, PA dated October 19, 1988. As you know, our appraisal was addressed to Mr. Dwayne Beech of Commerce Bank. We were hired by George Adams and the property was under contract to Adams-Molinari Properties at the time of the appraisal. While I can appreciate you desire to acquire a copy of the appraisal, I am unable to provide it to you without the express consent of Mr. Adams. I suggest you contact either Mr. Adams or Commerce Bank to acquire a copy or have a court subpoena the appraisal in which case I am then required to release it to the court. I am sorry that I cannot help you, however the Code of Ethics of The Appraisal Institute strictly prohibits me from breaching the confidentiality of the appraiser/client relationship in the manner you request. I trust that you will discontinue pressuring me for a copy of the appraisal since I have now indicated on several occasions that I cannot provide it for you and maintain compliance with our Code of Ethics. Yours truly, hirsh valuation group By: ~~~~ Laurence A. irs AI, esident LAH/sa cc: George Adams Al Bradley, Commerce Bank 4775 linglestown road • Harrisburg, pa. 17112 phone 717-652-9600 • fax 717-652-6267 ~~ FRANK WILSON, Plaintiff v. WEINSTEIN-HIRSH APPRAISAL GROUP and COMMERCE BANK/ HARRISBURG, Defendant . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 1070 Civil 1994 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRELILrIINARY OBJECTION OF DEFENDANT SCE BANK 1. Plaintiff's Complaint against Commerce Bank arises out of a construction loan entered into by Commerce Bank and the partnership of Wilson, Garn & McKee dated March 29, 1989. Plaintiff alleges that he was a partner in said partnership. 2. Plaintiff alleges that Commerce Bank issued a financing commitment letter dated February 14, 1989 to Wilson, Garn & McKee which imposed a pre-closing requirement of submission of an appraisal for a 9,500 square foot office building which would have a value of $800,000 upon completion of the construction. (Paragraph 9). Plaintiff further alleges that as part of the Construction Loan and Security Agreement dated March 29, 1989, the partnership was required to provide to Commerce Bank "an appraisal of the property and the improvements prepared by an appraiser, in form and amount, satisfactory to bank." (Paragraph 10). 32 3. Plaintiff alleges that the appraisal requirements of Commerce Bank were satisfied by submission of an appraisal prepared by co-Defendant, Weinstein-Hirsh Appraisal Group, dated October 29, 1988. 4. Plaintiff alleges that the Weinstein-Hirsh appraisal arrived at an erroneous value because, in part, the net leasable area of the building as constructed was less than that assumed by Weinstein-Hirsh Appraisal Group. 5. Plaintiff alleges that he relied upon the appraisal prepared by Weinstein-Hirsh Appraisal Group and "submitted and approved by" Commerce Bank to establish the economic feasibility of the project. (Paragraphs 12-14; 20-21; 31-35). 6. Plaintiff's Complaint against Commerce Bank is premised on an allegation that Commerce Bank knew or should have known that Plaintiff would rely upon the appraisal submitted to Commerce Bank to satisfy the financing condition of the loan, that Commerce Bank owed a duty to Plaintiff to carefully review the findings, assumptions and conclusions of the appraisal, that Commerce Bank failed to ascertain that the conclusion of value was flawed, in part, due to an "erroneous assignment of the rental value on a per square foot basis," and C 33 u that Plaintiff has been damaged by Commerce Bank's alleged failure to "exercise the ordinary skill and knowledge as required by commercial lenders in detriment to the Plaintiff." 7. Even assuming as true the factual averments of the Complaint, Commerce Bank owed no duty to Plaintiff under applicable Pennsylvania law upon which such a cause of action can be based. 8. Plaintiff's Complaint fails to state a cause of action against Commerce Bank. WHEREFORE, Commerce Bank demands that Plaintiff's Complaint against it be dismissed with prejudice. METTE, EVANS & WOODSIDE By : ~( /" Daniel L. Sullivan, Esquire Sup. Ct. I. D. #34548 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant Commerce Bank DATE : 3 l a ~ ~QL~ WP+ 5519 3~ D A A N m C ~ ~ D ~ ~ ~ ~ m u o z Z m w m x l ~ ~ ~ < ~ o Z r D v 0 ~ ~ 0 d o ~ o ~ ~ 0 e- ~~ ~::: -_ ,F,.:~ ~_ ,~. ~,. ,:~ ;.c --~ cx ~~c74~ Cd f"`-~~m ~ ~, ~ "~ -+c ti7~ FRANK WILSON V. Plaintiff WEINBTEIN - HIRBH APPRAISAL QROUP, and COMMERCE BANK/ HARRIBBURQ, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PE~TBYLVANIA No. 1070 CIVIL 1994 CIVIL ACTION - LAW : JURY TRIAL DEMANDED RULE TO SHOW CAUSE AND NOW this Cis ~~ day of _ ~ G(~- G~ , 1994, upon consideration of the Plaintiffs Motion for Leave of Court to Amend Complaint, a Rule is hereby entered to show cause why the Plaintiff should not be permitted to amend the Complaint to substitute the names of Laurence A. Hirsh and Charles F. Shubert, Jr., Defendants in place of the Weinstein - Hirsh Appraisal Group. Rule returnable ?~-v days after service. J. J • ~7 1-;NC~t"~;~gt~N3d .titV!t4~ t1N~~~?~Nt?;1 3~~~~C-- ~ -~ , i ; t~, ~a ~~ ~ ~z ~~~ C~ • FRANK l1ILSON v. Plaintiff WEINSTEIN - BIRSH APPRAISAL GROIIP, and COMMERCE BANK/ HARRI88IIRG, Defendants z IN THE COIIRT OF COMMON PLEAS s CIIMBERLAND COONTY, PENNSYLVANIA s No. 1070 CIVIL 1994 CIVIL ACTION - LAI/ s s JIIRY TRIAL DEMANDED MOTION FOR LEAVE OF COIIRT TO AMEND COMPLAINT AND NOA comes the Plaintiff, Frank Wilson, by and through his attorney Lawrence J. Neary, Esquire, and respectfully represents as follows: 1. On March 4, 1994, Plaintiff filed a Complaint against Defendants, Weinstein - Hirsh Appraisal Group and Commerce Bank/Harrisburg. 2. The receipt of the Return of Service from the Cumberland County Sheriff, a copy of which is attached hereto and marked as Exhibit A, indicates that the business known as Hirsh Valuation Group located at 4775 Linglestown Road, Harrisburg, PA is not the same company as Weinstein - Hirsh Appraisal Group. 3. Plaintiff has reason to believe that the firm previously known as Weinstein - Hirsh Appraisal Group has since dissolved and is no longer in existence. 4. Plaintiff proposes to file an Amended Complaint, a copy of which is attached hereto and marked as Exhibit B, which substitutes the name of Laurence A. Hirsh and Charles F. Schubert, Jr., in 3~ • • place of Weinstein - Hirsh Appraisal Group, in that they were the individuals who prepared the appraisal on which this Complaint is based. A copy of the cover sheet of said appraisal is attached hereto and marked as Exhibit C. 5. There has been no change in the Amended Complaint of the allegations contained in Count III against Commerce Bank. WHEREFORE, Plaintiff requests leave of Court to amend the Complaint to substitute Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr. in place of Weinstein - Hirsh Appraisal Group. Respectfully Submitted, CONNELLY, REID & SPADE Date: 3 ar By; r ce J. Nea , Esqu A t rney for P ntiff 1 - 112 Walnut Street P. O. Box 963 Harrisburg PA 17108 (717) 238-4776 (717) 238-4793 - Telecopier Pa. I.D. No. 25827 2 ~~ • ALL-STATE LEGAL SUPPLY CO.. 1-800-222-0510 ED11 RECYCLED ~ • ~~N--3~ i ~~ Frank Wilson vs Weinstein-Hirsh Appraisal Group and Commerce Bank Harrisburg • In the Court of Common ~Pl.eas of Cumberland County, Pennsylvania No. 1070 Civil Term, 1994 Complaint in Civil Action Law and Notir_e to Defend and Claim Rights Wesley Cook, Deputy Sheriff, who being duly sworn according to law, says on March 9, 1994 at 1:30 o'clock P.M., E.S.T., he served a true copy of Complaint in Civil Action Law and Notice to Defend and Claim Rights, in the above entitled action upon one of the within named defendants, to wit: Commerce Bank Harrisburg by making known unto Beck Bacher Compliance Officer for Commerce Bank Harrisburg at 100 Senate Avenue, Camp Hill, Cumberland County, Pennsylvania, its contents and at the same time handing to her personally the said true and attested copy of the same. R. Thomas Kline, Sheriff, who being duly sworn according to law, says he made diligent search and inquiry for one of the within named defendants, to wit: Weinstein-Hirsh Appraisal Group but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Dauphin County, Pennsylvania to serve the within Complaint in Civil Action Law and Notice to Defend and Claim Rights. DAUPHIN COUNTY RETURN: I William H. Livingston, Sheriff of the County of Dauphin, Commonwealth of Pennsylvania, do hereby certify and return that I made diligent search and inquiry for Weinstein-Hirsh Appraisa?. Group the defendant named in the within Complaint and that I an unable to find them in the County of Dauphin and therefore return same NOT FOUND this 15th day of March 1994. Kirsh Valuation Group is located at 4775 Linglestown Road, Harrisburg, Pa and they are not the same company. So answers: William EI. Livingston Sheriff of Dauphin County, Pennsylvania. L Daup}Zin County return hereto attached Sheriff's Costs: So answers: Docketing 18.00 Service 8.40 ~ , Surcharge 4.00 R. Thomas Kline, Sheriff Out of County 5.00 Dauphin Co. 25.50 by ~ i ~~ ~' 60.90 Pd.by Atty. 3-15-94 _ eputy Sworn and subscribed to before me this day of 1994 A. D. Prothonotary ~~ S 18-A ~~ ` • SHERIFF'S RETURN No. 1070 Civil 1994 PAGE 433 COMMONWEAI,`['[l OF PL'NNSYLVANIA COUNTY OF DAUPHIN I, William H. Livingston, Sheriff of the County of Dauphin, Conunonwealth of Pennsylvania, do hereby certify and return that I made diligent search and inquiry for Weinstein-Hirsh Appraisal Group the defendant named in the within Complaint and that I am unable to find them in the County of Dauphin and therefore return same NOT FOUND this 15th day of March 19 94 [{rsh Valuation Group is located at 4775 Linglestown Road, Harrisburg, Pa. and they are not the same company. So Answers Sheriff of Dauphin County, Penna. Sworn and subscribed to before me this 15th day of March 1994 ., ..~,,, n;'~t~ r ~~~ ~ ~~~ PRO'1 {ONO'1'ARY She r i. f f ' s Cost $~..5 -~ ~,,... t ~~ AlL-STATE LEGAL SUPPLY CO.. 1-800-222-0510 ED 11 ~X~~~~7 3 ~~ ~ ~ FRANK WILSON IN THE COIIRT OF COMMON PLEAS Plaintiff CIIMBERLAND COIINTY, PENNSYLVANIA v. No. 1070 CIVIL 1994 LAIIRENCE A. HIRSH and CIVIL ACTION - LAW CHARLES F. SCHIIBERT, JR., and COMMERCE BANK/HARRISBIIRG, Defendants JIIRY TRIAL DEMANDED NOTICE TO DEFEND AND CLAIM RIGHTS You have been sued in Court. If you wish to defend against the claims set forth in the following papers, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator, Fourth Floor Cumberland County Court House 1 Courthouse Square Carlisle, Pennsylvania 17013-3387 Telephone: (717) 240-6200 Respectfully submitted, CONNELLY, REID, & SPADE Date: By: Lawrence J. Neary, Esquire P.O. Box 963 Harrisburg, PA 17108 (717) 238-4776 Pa. I.D. No. 25827 ~~ • FRANK WILSON v. Plaintiff LAIIRENCE A. HIRSH and CHARLES F. SCHIIBERT, JR., and COMMERCE BANK/HARRISBIIRG, Defendants IN THE COIIRT OF COMMON PLEAS CIIMBERLAND COIINTY, PENNSYLVANIA No. 1070 CIVIL 1994 CIVIL ACTION - LAW JIIRY TRIAL DEMANDED AMENDED COMPLAINT AND NOW comes the Plaintiff, Frank Wilson, by and through his attorney, Lawrence J. Neary, Esquire, and respectfully represents as follows: 1. Plaintiff, Frank Wilson, is an adult individual, residing at 511 Springhouse Road, Hampden Township, Cumberland County, Pennsylvania. 2. Defendant, Laurence A. Hirsh, is an adult individual with his office located at 4775 Linglestown Road, Harrisburg, Dauphin County, Pennsylvania and at all times relevant hereto was a principal, agent, employee or representative of the Weinstein - Hirsh Appraisal Group. 3. Defendant, Charles F. Schubert, Jr., is an adult individual with his place of business now located at Mt. Washington Valley Chamber of Commerce Building, P. O. Box 451, North Conway, New Hampshire 03860-0451, and at all times relevant hereto was an agent, employee or representative of the Weinstein - Hirsh Appraisal Group. ~~ ~ ~ 4. Defendant, Commerce Bank/Harrisburg, is a Pennsylvania state banking institution having its offices located at 100 Senate Avenue, Camp Hill, Cumberland County, Pennsylvania 17011-8599. 5. Weinstein - Hirsh Appraisal Group, which at all times relevant hereto, was engaged in the business of providing real estate appraisals. 6. Prior to October of 1988, Weinstein - Hirsh Appraisal Group, was requested to perform an appraisal for a proposed office building for the premises now known as 3507 Market Street, Hampden Township, Cumberland County, Pennsylvania by George J. Adams. 7. At said time, said premises was titled in the name of the Wilson, Garn & McKee, a Pennsylvania partnership of which Frank Wilson and Gary Garn were the remaining partners. 8. Said appraisal was requested to establish the market value of the real estate and proposed construction as completed, and for the purpose of obtaining financing for the construction of the office building proposed for the site which was to be constructed by a construction company owned by George J. Adams. 9. Pursuant to said request, an appraisal report was prepared by Laurence A. Hirsh and Charles F. Schubert, Jr., and certified by the Weinstein - Hirsh Appraisal Group, and said appraisal report was addressed to Commerce Bank on October 19, 1988. Said appraisal established a market value of the proposed office building when 2 • completed to be Nine Hundred Twenty-Five Thousand ($925,000.00) Dollars. 10. Thereafter, pursuant to a financing commitment letter from Commerce Bank dated February 14, 1989 to Wilson, Garn & McKee, a Pennsylvania general partnership, comprised of partners, Plaintiff, Frank Wilson and George J. Adams, a pre-closing requirement was the submission of an appraisal for a 9,500 square foot office building which would have a value of Eight Hundred Thousand ($800,000.00) Dollars upon completion of the construction. il. The Construction Loan and Security Agreement entered between the partnership of Wilson, Garn & McKee and Commerce Bank dated March 29, 1989 provided that as a condition precedent to the disbursement of funds by Commerce Bank on the construction loan to the partnership of Wilson, Garn & McKee, was required to provide, "an appraisal of the property and the improvements prepared by an appraiser, in form and amount, satisfactory to bank;" (Paragraph 9(k)) of said Construction Loan Agreement. 12. Plaintiff, prior to the closing on said Construction Loan Agreement which occurred on March 29, 1989 and for a substantial time thereafter, did not receive a copy of said appraisal and believes and therefore avers that the appraisal prepared by the Weinstein - Hirsh Appraisal Group dated October 29, 1988 was submitted to Defendant, Commerce Bank, to satisfy the appraisal 3 ~~ i • requirements to Commerce Bank in the financing commitment and the Construction Loan Agreement. 13. In reliance upon the representation as to the value of the proposed office building, which established the economic feasibility of the project and in reliance upon Commerce Bank's acceptance of said appraisal as satisfactory, the loan closing took place with Commerce Bank on March 29, 1989 and thereafter said office building was constructed on the premises. 14. As a result of Plaintiff's reliance on the appraisal as prepared by Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr., and the Weinstein - Hirsh Appraisal Group which was submitted to and approved by Commerce Bank, Plaintiff transferred his interest in the real estate known as 3507 Market Street, Hampden Township, Cumberland County, Pennsylvania to the partnership, Wilson, Garn & McKee, and executed a Construction Loan in the amount of Six Hundred Thirty-Five Thousand ($635,000.00) Dollars in favor of Commerce Bank which also required his personal guaranty. 15. As a further result of Plaintiff's reliance on the appraisal of the Weinstein - Hirsh Appraisal Group which was submitted and approved by Commerce Bank, Plaintiff, individually and as a partner, made the necessary financial commitments to begin a construction project allegedly worth Nine Hundred Twenty-Five Thousand ($925,000.00) Dollars which in fact was worth Six Hundred 4 ~~ Thousand ($600,000.00) Dollars, resulting in a loss of Three Hundred Twenty-Five Thousand ($325,000.00) Dollars to the Plaintiff. 16. Said appraisal as performed by Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr., was based on the assumption that the proposed building would contain 9,159 square feet and a net leasable area of 7,500 square feet. 17. However, at all times relevant hereto, the site plan as approved by the Hampden Township Zoning Hearing Board on October 12, 1988, prior to the appraisal date, allowed for an office building containing 6,450 square feet of net rentable office area based on the number of parking spaces required which was confirmed in the final approval of the plan given on April 4, 1989. 18. On or about April 3, 1992, Plaintiff, Frank Wilson, was advised that the Construction Mortgage and Note were not being paid in a timely manner to Commerce Bank by the managing partner of the partnership known as Wilson, Garn & McKee who, by designation, was George J. Adams who was exclusively handling all financial matters for the partnership. 19. Shortly thereafter, Plaintiff, Frank Wilson, while providing additional personal funds to cure the default, and in the course of conversations with representatives of Commerce Bank, was advised that the value of said office building in 1988 and in 1992 5 T c M • was substantially less than as appraised prior to construction and was in fact valued less than the balance on the Construction Mortgage which at the time was approximately Six Hundred Thirty Thousand ($630,000.00) Dollars. 20. After the loan closing, Plaintiff attempted to obtain a copy of said appraisal which was not provided to him and as recently as January of 1993 was not made available to him by Hirsh Valuation Group as per the attached correspondence dated January 4, 1993 which is attached hereto and marked as Exhibit A. 21. As a further result of Plaintiff's reliance on the appraisal as prepared by Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr., and which was submitted and approved by Commerce Bank, Plaintiff, solely and without any contribution from his partner George J. Adams, has been forced to contribute the sum of Thirty-Nine Thousand ($39,000.00) Dollars as additional funding to the partnership based on his individual guaranty to address the negative cash flow and is being forced to contribute the additional sum of One Thousand Thirty-Three ($1,133.00) Dollars per month for operating expenses which represents a deficiency brought on in part by the reduced amount of the leasable space and the incorrect appraisal of the building's rental value on a per square foot basis. This deficiency may continue for an indefinite time into the future. 6 J G • 22. As a further result of Plaintiff's reliance on the appraisal as prepared by Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr., which was submitted and approved by Commerce Bank, Plaintiff was on June 24, 1992 required to execute an additional Note in the amount of Seventeen Thousand Six Hundred Thirty-Six Dollars and Thirty Cents ($17,636.30) secured by a Mortgage on his residence located at 511 Springhouse Road, Hampden Township, Cumberland County, Pennsylvania and on other property owned by the Plaintiff located at 5401 Jonestown Road, Lower Paxton Township, Dauphin County, Pennsylvania to remedy the delinquency in the Mortgage because of his inability to refinance the Market Street project due to its then present value. COIINT I Frank Wilson v. Laurence A. Hirsh and Charles F. Schubert, Jr. 23. Paragraphs 1 through 21 are hereby incorporated by reference herein. 24. Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr., owed a duty to the Plaintiff to properly and correctly appraise the value of the proposed construction in accordance with generally accepted appraisal methods. 25. Defendants violated that duty to the Plaintiff by not properly preparing said appraisal, but rather doing so negligently, 7 ~~ • carelessly, unskillfully and thereby misrepresenting the value of the proposed construction in excess of its actual value. 26. Plaintiff believes and therefore avers that a properly completed appraisal of said premises in October of 1988 would have reflected a value of Six Hundred Thousand ($600,000.00) Dollars for the proposed construction, as opposed to the appraised value of Nine Hundred Twenty-Five Thousand ($925,000.00) Dollars provided by the Defendant. WHEREFORE, Plaintiff demands Judgment against the Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr., in an amount in excess of $20,000.00 plus interest and costs of suit. COUNT II Frank Wilson v. Laurence A. Hirsh and Charles F. Schubert, Jr. 27. Paragraph 1 through 21 are hereby incorporated by reference herein. 28. Plaintiff, Frank.Wilson, is a third party beneficiary of the contractual obligation imposed upon Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr., to prepare an appraisal for the proposed construction at 3507 Market Street, Hampden Township, Cumberland County, Pennsylvania. 8 ~2 • 29. Plaintiff believes and therefore avers that the Defendants failed to perform said appraisal in accordance with generally accepted appraisal principles thereby breaching their contractual obligation to perform said appraisal in accordance with accepted standards. 30. As a result of said breach, Plaintiff, a third party beneficiary of said contract, has suffered losses as set forth above and will continue to experience said losses through time of trial. WHEREFORE, Plaintiff demands Judgment against the Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr., in an amount in excess of $381,636.60 plus interest and costs of suit. COIINT III Frank Wilson n. Commerce Bank 31. Paragraphs 1 through 21 are hereby incorporated by reference herein. 32. Defendant, Commerce Bank/Harrisburg, knew or should have known that the appraisal prepared by the Weinstein - Hirsh Appraisal Group, and submitted to Commerce Bank to satisfy the financing condition on the loan given to the Plaintiff, would be relied upon by the Plaintiff in determining whether the project was economically feasible and justified. 9 .53 a • • 33. Defendant, Commerce Bank/Harrisburg, by accepting said appraisal in satisfaction of the requirements contained in the Construction Loan Agreement, thereby ratified and confirmed the appraisal of the Weinstein - Hirsh Appraisal Group thereby confirming the financial viability of the project. 34. Defendant, Commerce Bank/Harrisburg, owed a duty to the Plaintiff to carefully review the findings, assumptions and conclusions of the appraisals submitted to them on behalf of the Plaintiff. 35. Defendant, in violating that duty, did not properly review the contents, the analysis and findings of said appraisal and thereby failed to ascertain that the conclusion of value was flawed due in part, among other things, to the calculations based upon incorrect net leasable space for the premises and the erroneous assignment of the rental value on a per square foot basis. 36. As a result of the aforesaid conduct, Defendant failed to exercise the ordinary skill and knowledge as required by commercial lenders in detriment to the Plaintiff. 10 ~T a • WHEREFORE, Plaintiff demands Judgment against the Defendant, Commerce Bank/Harrisburg, in an amount in excess of $20,000.00 plus interest and costs of suit. Respectfully Submitted, CONNELLY, REID & SPADE Date: By: Lawrence J. Neary, Esquire Attorney for Plaintiff 108 - 112 Walnut Street P. O. Box 963 Harrisburg PA 17108 (717) 238-4776 (717) 238-4793 - Telecopier Pa. I.D. No. 25827 11 ~.s ALL STATE LEC+AL SUPPLY CO. ONE COMMERCE DRIYE, CRANEORD. NEW~T~18 (21 • ED11 V A , t=: P P R A ~ ~ - ~Rr ~;~FFD OFFICE ~UILDiitiG T~=~ r1Art~-.C i ~ i CiCG i ~r~~F°~EN ~wr~Sr~r C' ~hiBERLAi`-dD ~~UUt1t ; Y , PA p R r'!Fi . ~wA'.'rdc SE= CFi , V i CL PRES I ~E r~~ Cu~~1ERC I AL SA~uL~' ScrdA c c AVE~SUE ;;;c_ Cr=;MF' ri a _L , PENrv~Y~°J~+iy I ri B Y :4E . PSTE i i•I-i-i i ^nS: i APPnA I SAL GRQUF ~AUF~S~t.E A. HIRSH, h1AI , SRPA ~.H; ;KCBs F . SCHi~BET a ~.3R - v ASS:~~:• i e + i E AP P RA i 5Ei 57 i FRANK WILSON v. • plaintiff WLINSTBIN - BIRSH APPRAISAL GROUP, and COMMERCE BANK/ HARRISBIIRG, Defendants i . , IN THB COURT OF COMMON PLBAB CUMBERLAND COUNTY, PENNSYLVANIA s : NO. 1070 CIVIL 1994 : CIVIL ACTION - LAW JIIRY TRIAL DEMANDED ORDER OF COURT 4 u on consideration AND NOW this ~ day of ~ , 199 P of the Motion to Make the Rule Absolute, Plaintiff is hereby granted leave of Court to amend the Complaint to substitute Defendants Laurence A. Hirsh and Charles F. Schubert, Jr. in place of Defendant, Weinstein-Hirsh Appraisal Group. ,~- J. ~.~ T f ,:~a~„ `fir t ~, i 1 `, 58 i FRANK WILSON v. • Plaintiff WEINSTEIN - HIRBH APPRAISAL GROIIP, and COMMERCE BANK/ HARRISBIIRG, Defendants n U : IN THE COIIRT OF COMMON PLEAS CIIMBERLAND COONTY, PENNSYLVANIA No. 1070 CIVIL 1994 CIVIL ACTION - LAW JIIRY TRIAL DEMANDED MOTION TO MARE RIILE ABSOLIITE AND NOW, comes the Plaintiff, Frank Wilson, by and through his attorney, Lawrence J. Neary, Esquire, and respectfully represents as follows; 1. On or about March 21, 1994, Plaintiff filed a Motion for Leave of Court to Amend Complaint and thereafter a Rule to Show Cause was entered on March 28, 1994, a copy of which is attached hereto and marked as Exhibit A. 2. On March 29, 1994, a copy of the Motion for Leave of Court to Amend Complaint and Rule to Show Cause were served on the Defendant, Commerce Bank, through their attorney, Daniel L. Sullivan as set forth in the Certificate of Service attached hereto and marked as Exhibit B. 3. The entity known as the Weinstein-Hirsh Apparently is no longer in existence as indicated in the Sheriff's Return, a copy of which is attached hereto and marked as Exhibit C. 4. No responsive pleading or objection has been filed on behalf of the Defendant, Commerce Bank, to the proposed amendment. WBBREFORE, Plaintiff requests that the Rule be made absolute and that the Plaintiff be permitted to amend the Complaint as set forth in the Motion to substitute Defendants Laurence A. Hirsh and Charles F. Schubert, Jr., in place of Defendant, Weinstein-Hirsh Appraisal Group. Respectfully Submitted, CONNELLY, REID & SPADE Date : ~ `~ 9 By r ce eary, Es re A t ney f Plain f 108 - 11 Walnut tr t P. 0. Box 963 Harrisburg PA 17108 (717) 238-4776 (717) 238-4793 - Telecopier Pa. I.D. No. 25827 2 (O~ • ALL-STATE LEGAL SUPPLY CO., 1-900-222-0510 EOti RECYCLED i~ ~ ~ • FRANK WILSON v. Plaintiff WEINSTEIN - HIRSH APPRAISAL GROIIP, and COMMERCE BANK/ HARRISBIIRG, Defendants IN THE COIIRT OF COMMON PLEAB CIIMBERLAND COIINTY, PENNSYLVANIA No. 1070 CIVIL 1994 CIVIL ACTION - LAW JIIRY TRIAL DEMANDED RIILE TO SHOW CAIISE AND NOW this ~~ day of ~ atict.~ , 1994, upon consideration of the Plaintiff's Motion for Leave of Court to Amend Complaint, a Rule is hereby entered to show cause why the Plaintiff should not be permitted to amend the Complaint to substitute the names of Laurence A. Hirsh and Charles F. Shubert, Jr., Defendants in place of the Weinstein - Hirsh Appraisal Group. Rule returnable ,.~ p days after service. s ~ ~..-e~e. ~' ..~~, J. TRl.l~ COPY ~4t~t~t R~CC3RD In T~st~m,^',~ `:~.,'tLC`, ! r:. r:; unto set my hand and the seal of ~a~d Cou~•t at Carlisle, Pa. This ...~2. g.~... day of.. ~~'~?., 19.9 `f. ................ ......... .. Q roth~ tc.~»........ ~' (Z AL~iAiF LFA. SUPPLY CO.(iNC.:C:MMERCE DRIV[. CRANFGRf), NEW ~C,e ;21 • ECii ~X~--r~~ (3 FRANK WILSON v. Plaintiff WEINSTEIN - HIRBH APPRAISAL GROUP, and COMMERCE BANK/ HARRISBURG, Defendants IN THE COIIRT OF COMMON PLEAB : CUMBERLAND COUNTY, PENNSYLVANIA s No. 1070 CIVIL 1994 ' : CIVIL ACTION - LAW : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Lawrence J. Neary, Esquire, of Connelly, Reid, & Spade, attorneys for Plaintiff hereby certify that I have on the date shown below, served a copy of the foregoing Rule to Show Cause to the person(s) and in the manner indicated below: UNITED STATE FIRST CLA88 MAIL, POSTAGE PREPAID Daniel L. Sullivan, Esquire METTE, EVANS & WOODSIDE 3401 N. Front Street P. O. Box 5950 Harrisburg PA 17110-0950 CONNELLY, REID & SPADE Date: ~ ~~/ By: Lawr n e J. ry, Es re Att ey f Plaintiff 108 - 112 alnut Stre t P. O:~Box 963 Harrisburg PA 17108 (717) 238-4776 (717) 238-4793 - Telecopier Pa. I.D. No. 25827 (0 ~ :~ ALL STATE LEL:AI SUPPLY CO.ONE WMMERCE bRIVE,CRANEOflb, NEW ~O16 (2) • ED11 ~x 1~ 1131 ~5 l•'rank Wilson VS We:i.nstein-Ilir.sh Apprai.sa_l Group and Conunerce Bank flarr_ i shua-g In the Court of Common Pleas of Cumberland County, Pennsylvania No. 1070 Civil 'I'errn, 1994 Complaint in Civil Action Law and Notice to Uefend and CJ_aim Rig}tts Wei lc~y Cook, Uepu ty S1-erif f , wlto being duly sworn according to law, :;ays on March 9, 1994 at 1:30 o'clock P.M., E.S.'I'., he served a Lrue co1)y of Corir}~la:i.nl in Civil Action Law and Notice to Defend and CJ_aa.n- [t.i_yhts, i.rt the above entitled action upon one of ll-e w:i_t)rin named defend ants, to wit: Commerce Bank (-iarrisburg by -nalc_i.ny known unto 13eclc Bacl-er Co-npliance Officer for Commerce Bank Ilan-:i.shur.y at l0U Sena le Avenue, Carr-p hill, Curnber]_and County, I'ennsyl_vania, i.ts concerts and at l-he same time handing to her 1~crsona.lJ.y lyre said true and attested copy of the same. I1. 'Thomas I(.1_ine, Sher:i.ff, who being duly sworn according to law, says 1-e made di].iyent search and inquiry for one of_ the within nan-r?d def.r.ndan ts, to w:i. t : Weinstein-Ilirslr Appraisal Group but was unah.le to locate there :i.n ]ris bailiwick. Ile therefore deputized Che Sheriff of Dauphin County, Pennsylvania to serve Lhe w_i.thin Complaint i.n C.i.vil Action Law and Notice to Defend and Clai_ni I~igl-ts. UAUI'IIIN CUi1N'1'Y lZl'I'l1RN: I Willia-n 11. Livingston, Sheriff of the County of Uauphi.rt, Commonwealth of Pennsylvania, do hereby cerlif_y ~trtd r_elurn that- t made diligent searcl- and inquiry for Weirs ke _n-II i.rsh Appr_aisa]. Group the defendant named in the wi. th i.n Comp l.a:in l and that I an unable to find there in the County of Uauph:i.n and therefore return same NO'I' ]"OUND this 15th day of March .1994. Ili_rsl- Valuation Group is located at 4775 Linglestown (toad, Ili)C~I:.LSbr11:y, Pa arc] they are not the same company. So .:-nswers: WiJ.l.i.am II. [,i.v.nyslon Sheriff of Uaupltin County, Uauhl-:i.n Cc.)unty return I-ereto attached Sher:if f ' s Cus i s : So answers Uocke t.i.ny 1.13 . UU Service l}.4U ' Su rc:harye 4.UU [~. 'I'Ilomas Kline, Sheriff Uul- of County -c.UO ~i~,/~~ ~J~/ /~ Uau1-I-i_ri (: c).1_.~. ~0 by i~ , j`/LrC- 60.90 I'd.by Atty. 3-15-94 .J (deputy Sworn and sul~scr:i_hed to before me this cl.-y c~.f- 1.994 A.U. l'ro t hone to ry (C/ FRANR 1PILSON IN THE COIIRT OF COMMON PLEAS Plaintiff CIIMBERLAND COIINTY, PENNSYLVANIA v• No. 1070 CIVIL 1994 WEINBTEIN - HIR88 APPRPiISAL : CIVIL ACTION - LA11 GROIIP, and COMMERCE BANR/ : HARRISBIIRG, ; Defendants JIIRY TRIAL DEMANDED CERTIFICATE OF BERVICE I, Lawrence J. Neary, Esquire, of Connelly, Reid, & Spade, attorneys for Plaintiff hereby certify that I have on the date shown below, served a copy of the foregoing Motion to Make Rule Absolute to the person(s) and in the manner indicated below: IINITED STATE FIRST CLA88 MAIL, POSTAGS PREPAID Daniel L. Sullivan, Esquire METTE, EVANS & WOODSIDE 3401 N. Front Street P. O. Box 5950 Harrisburg PA 17110-0950 CONNELLY, REID & SPADE Date : J ~ 7 ~ ~~ gy; Law a ce J ary, ire At ney Plai i f 10 - 112 alnut t eet P. O. Box 963 Harrisburg PA 17108 (717) 238-4776 (717) 238-4793 - Telecopier Pa. I.D. No. 25827 ~~ _. . _ • FRANR lIIL80N IN THE COURT OF COMMO~i PLEAB Plaintiff CIIMBERLAND COUNTY, PENNBYLVANiA ~• S No. 1070 CIVIL 1994 s LAURENCE A. HiRBH and CIVIL ACTION - LAA CHARLES F. BCHUBERT, JR., and COMMERCE BANK/HARRIBBIIRQr, : Defendants JURY TRIAL DEMANDED NOTICE TO DEFEND AND CLAIM RIaHTB You have been sued in Court. If you wish to defend against the claims set forth in the following papers, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator, Fourth Floor Cumberland County Court House 1 Courthouse Square Carlisle, Pennsylvania 17013-3387 Telephone: (717) 240-6200 Respectfully submitted, CONNELLY, REID, & SPADE Date: 5 ~ a ~ By, Law a ce J. N , Esquire P. Box 963 ~ Harrisburg, 17108 (717) 238-47 6 Pa. I.D. No. 25827 G8 .. FRANK WILSON Plaintiff V. LAIIRENCE A. HIRBH and CHARLES F. SCHQBERT, JR., and COMMERCE BANK/HARRISBIIRti, D®fendante U IN THE COORT OF COM1[ON PLEAB : CDMBSRLAND COIINTY, PENNSYLVANIA s No. 1070 CIVIL 1994 CIVIL ACTION - LAW : JIIRY TRIAL DEMANDED AMENDED COMPLAINT AND NOW comes the Plaintiff, Frank Wilson, by and through his attorney, Lawrence J. Neary, Esquire, and respectfully represents as follows: 1. Plaintiff, Frank Wilson, is an adult individual, residing at 511 Springhouse Road, Hampden Township, Cumberland County, Pennsylvania. 2. Defendant, Laurence A. Hirsh, is an adult individual with his office located at 4775 Linglestown Road, Harrisburg, Dauphin County, Pennsylvania and at all times relevant hereto was a principal, agent, employee or representative of the Weinstein - Hirsh Appraisal Group. 3. Defendant, Charles F. Schubert, Jr., is an adult individual with his place of business now located at Mt. Washington Valley Chamber of Commerce Building, P. O. Box 451, North Conway, New Hampshire 03860-0451, and at all times relevant hereto was an agent, employee or representative of the Weinstein - Hirsh Appraisal Group. ~O9 .. .. 4. Defendant, Commerce Bank/Harrisburg, is a Pennsylvania state banking institution having its offices located at 100 Senate Avenue, Camp Hill, Cumberland County, Pennsylvania 17011-8599. 5. Weinstein - Hirsh Appraisal Group, which at all times relevant hereto, was engaged in the business of providing real estate appraisals. 6. Prior to October of 1988, Weinstein - Hirsh Appraisal Group, was requested to perform an appraisal for a proposed office building for the premises now known as 3507 Market Street, Hampden Township, Cumberland County, Pennsylvania by George J. Adams. ~~-~ 7 . At said ~ ' "' time, said premises was titled in the name of the Wilson, Garn & McKee, a Pennsylvania partnership of which Frank Wilson and Gary Garn were the remaining partners. 8. Said appraisal was requested to establish the market value of the real estate and proposed construction as completed, and for the purpose of obtaining financing for the construction of the office building proposed for the site which was to be constructed by a construction company owned by George J. Adams. 9. Pursuant to said request, an appraisal report was prepared by Laurence A. Hirsh and Charles F. Schubert, Jr. , and certified by the Weinstein - Hirsh Appraisal Group, and said appraisal report was addressed to Commerce Bank on October 19, 1988. Said appraisal established a market value of the proposed office building when 2 70 .. ~ • completed to be Nine Hundred Twenty-Five Thousand ($925,000.00) Dollars. 10. Thereafter, pursuant to a financing commitment letter from Commerce Bank dated February 14, 1989 to Wilson, Garn & McKee, a Pennsylvania general partnership, comprised of partners, Plaintiff, Frank Wilson and George J. Adams, a pre-closing requirement was the submission of an appraisal for a 9,500 square foot office building which would have a value of Eight Hundred Thousand ($800,000.00) Dollars upon completion of the construction. 11. The Construction Loan and Security Agreement entered between the partnership of Wilson, Garn & McKee and Commerce Bank dated March 29, 1989 provided that as a condition precedent to the disbursement of funds by Commerce Bank on the construction loan to the partnership of Wilson, Garn & McKee, was required to provide, "an appraisal of the property and the improvements prepared by an appraiser, in form and amount, satisfactory to bank;" (Paragraph 9(k)) of said Construction Loan Agreement. 12. Plaintiff, prior to the closing on said Construction Loan Agreement which occurred on March 29, 1989 and for a substantial time thereafter, did not receive a copy of said appraisal and believes and therefore avers that the appraisal prepared by the Weinstein - Hirsh Appraisal Group dated October 29, 1988 was submitted to Defendant, Commerce Bank, to satisfy the appraisal 3 ~~ • requirements to Commerce Bank in the financing commitment and the Construction Loan Agreement. 13. In reliance upon the representation as to the value of the proposed office building, which established the economic feasibility of the project and in reliance upon Commerce Bank's acceptance of said appraisal as satisfactory, the loan closing took place with Commerce Bank on March 29, 1989 and thereafter said office building was constructed on the premises. 14. As a result of Plaintiff's reliance on the appraisal as prepared by Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr., and the Weinstein - Hirsh Appraisal Group which was submitted to and approved by Commerce Bank, Plaintiff transferred his interest in the real estate known as 3507 Market Street, Hampden Township, Cumberland County, Pennsylvania to the partnership, Wilson, Garn & McKee, and executed a Construction Loan in the amount of Six Hundred Thirty-Five'rhousand ($635,000.00) Dollars in favor of Commerce Bank which also required his personal guaranty. 15. As a further result of Plaintiff's reliance on the appraisal of the Weinstein - Hirsh Appraisal Group which was submitted and approved by Commerce Bank, Plaintiff, individually and as a partner, made the necessary financial commitments to begin a construction project allegedly worth Nine Hundred Twenty-Five Thousand ($925,000.00) Dollars which in fact was worth Six Hundred 4 `72 • • Thousand ($600,000.00) Dollars, resulting in a loss of Three Hundred Twenty-Five Thousand ($325,000.00) Dollars to the Plaintiff. 16. Said appraisal as performed by Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr., was based on the assumption that the proposed building would contain 9,159 square feet and a net leasable area of 7,500 square feet. 17. However, at all times relevant hereto, the site plan as approved by the Hampden Township Zoninq Hearing Board on October 12, 1988, prior to the appraisal date, allowed for an office building containing 6, 450 square feet of net rentable office area based on the number of parking spaces required which was confirmed in the final approval of the plan given on April 4, 1989. 18. On or about April 3, 1992, Plaintiff, Frank Wilson, was advised that the Construction Mortgage and Note were not being paid in a timely manner to Commerce Bank by the managing partner of the partnership known as Wilson, Garn & McKee who, by designation, was George J. Adams who was exclusively handling all financial matters for the partnership. 19. Shortly thereafter, Plaintiff, Frank Wilson, while providing additional personal funds to cure the default, and in the course of conversations with representatives of Commerce Bank, was advised that the value of said office building in 1988 and in 1992 ~~ 73 .. • • was substantially less than as appraised prior to construction and was in fact valued less than the balance on the Construction Mortgage which at the time was approximately Six Hundred Thirty Thousand ($630,000.00) Dollars. 20. After the loan closing, Plaintiff attempted to obtain a copy of said appraisal which was not provided to him and as recently as January of 1993 was not made available to him by Hirsh Valuation Group as per the attached correspondence dated January 4, 1993 which is attached hereto and marked as Exhibit A. 21. As a further result of Plaintiff's reliance on the appraisal as prepared by Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr., and which was submitted and approved by Commerce Bank, Plaintiff, solely and without any contribution from his partner George J. Adams, has been forced to contribute the sum of Thirty-Nine Thousand ($39,000.00) Dollars as additional funding to the partnership based on his individual guaranty to address the negative cash flow and is being forced to contribute the additional sum of One Thousand Thirty-Three ($1,133.00) Dollars per month for operating expenses which represents a deficiency brought on in part by the reduced amount of the leasable space and the incorrect appraisal of the building's rental value on a per square foot basis. This deficiency may continue for an indefinite time into the future. 6 7~f • • 22. As a further result of Plaintiff's reliance on the appraisal as prepared by Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr., which was submitted and approved by Commerce Bank, Plaintiff was on June 24, 1992 required to execute an additional Note in the amount of Seventeen Thousand Six Hundred Thirty-Six Dollars and Thirty Cents ($17,636.30) secured by a Mortgage on his residence located at 511 Springhouse Road, Hampden Township, Cumberland County, Pennsylvania and on other property owned by the Plaintiff located at 5401 Jonestown Road, Lower Paxton Township, Dauphin County, Pennsylvania to remedy the delinquency in the Mortgage because of his inability to refinance the Market Street project due to its then present value. COIINT I Frank Wilson v. Laurance !~. Hirsh and Charles F. Schubert, Jr. 23. Paragraphs 1 through 21 are hereby incorporated by reference herein. 24. Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr., owed a duty to the Plaintiff to properly and correctly appraise the value of the proposed construction in accordance with generally accepted appraisal methods. 25. Defendants violated that duty to the Plaintiff by not properly preparing said appraisal, but rather doing so negligently, 7 '75 • • carelessly, unskillfully and thereby misrepresenting the value of the proposed construction in excess of its actual value. 26. Plaintiff believes and therefore avers that a properly completed appraisal of said premises in October of 1988 would have reflected a value of Six Hundred Thousand ($600,000.00) Dollars for the proposed construction, as opposed to the appraised value of Nine Hundred Twenty-Five Thousand ($925,000.00) Dollars provided by the Defendant. WHl3RFFORB, Plaintiff demands Judgment against the Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr., in an amount in excess of $20,000.00 plus interest and costs of suit. COIINT II Frank Ailson v. Laurence A. Hirsh and Charles F. 8ohub®rt, Jr. 27. Paragraph 1 through 21 are hereby incorporated by reference herein. 28. Plaintiff, Frank Wilson, is a third party beneficiary of the contractual obligation imposed upon Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr., to prepare an appraisal for the proposed construction at 3507 Market Street, Hampden Township, Cumberland County, Pennsylvania. 8 7~ i • 29. Plaintiff believes and therefore avers that the Defendants failed to perform said appraisal in accordance with generally accepted appraisal principles thereby breaching their contractual obligation to perform said appraisal in accordance with accepted standards. 30. As a result of said breach, Plaintiff, a third party beneficiary of said contract, has suffered losses as set forth above and will continue to experience said losses through time of trial. WH$R$FORE, Plaintiff demands Judgment against the Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr., in an amount in excess of $381,636.60 plus interest and costs of suit. COIINT III Frank Wilson v. Commsra® Bank 31. Paragraphs 1 through 21 are hereby incorporated by reference herein. 32. Defendant, Commerce Bank/Harrisburg, knew or should have known that the appraisal prepared by the Weinstein - Hirsh Appraisal Group, and submitted to Commerce Bank to satisfy the financing condition on the loan given to the Plaintiff, would be relied upon by the Plaintiff in determining whether the project was economically feasible and justified. 9 /! I ~ ~ 33. Defendant, Commerce Bank/Harrisburg, by accepting said appraisal in satisfaction of the requirements contained in the Construction Loan Agreement, thereby ratified and confirmed the appraisal of the Weinstein - Hirsh Appraisal Group thereby confirming the financial viability of the project. 34. Defendant, Commerce Bank/Harrisburg, owed a duty to the e Plaintiff to carefully review the findings, assumptions and t. conclusions of the appraisals submitted to them on behalf of the Plaintiff. 35. Defendant, in violating that duty, did not properly review the contents, the analysis and findings of said appraisal and thereby failed to ascertain that the conclusion of value was flawed due in part, among other things, to the calculations based upon incorrect net leasable space for the premises and the erroneous assignment of the rental value on a per square foot basis. 36. As a result of the aforesaid conduct, Defendant failed to exercise the ordinary skill and knowledge as required by commercial lenders in detriment to the Plaintiff. 10 78 WH$REFORE, Plaintiff demands Judgment against the Defendant, Commerce Bank/Harrisburg, in an amount in excess of $20,000.00 plus interest and costs of suit. Respectfully Submitted, Date: s (~, ~~~ gy; CONNELLY, REID & SPADE La e e J. N , Es e At o ey for ainti f 10 - 112 Wa ut St eet P. O. Box 963 Harrisburg PA 17108 (717) 238-4776 (717) 238-4793 - Telecopier Pa. I.D. No. 25827 11 `7 9 `_, t^ ~~ -.~ ,~ , ~, ~, ~ ~` ~ '~~~~ ~ na • VERIFICATION I, Frank Wilson, hereby acknowledge that I am a Plaintiff in the foregoing action; that I have read the foregoing Amended Complaint and the statements made therein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date : ~ ! ~L L (~~ ~ j ~( ~~ ~,~ ~ ~ ; 6y~ Frank Wilson ~D ALL-STATE LEGAL SUPPLY CO.. 1-800-222-0510 ED11 RECYCLED [x~113i~ ~~ Kirsh valuation group January 4, 1993 Mr. Frank Wilson 511 Springhouse Road Camp Hill, PA 17011 Dear Mr. Wilson: t'" ~ .. ~ SINCE 1980 • LAURENCE A. HIRSH, MAI CHRISTINE L. FAKE JEFFREY L. WALTERS LISA C. McKEANO ' MARK E.LETSCHER, MS JENNIFER S. LIS JAMES W.B. SPRAGUE CHESTER W, GINSBERG CURTIS H. O'HILL I am in receipt of your letter dated December 30, 1992 requesting a copy of our appraisal of 3507 Market Street, Camp Hill, PA dated October 19, 1988. As you know, our appraisal was addressed to Mr. Dwayne Beech of Commerce Bank. We were hired by George Adams and the property was under contract to Adams-Molinari Properties at the time of tl~e appraisal. While I can appreciate you desire to acquire a copy of the appraisal, I am unable to provide it to you without the express consent of Mr. Adams. I suggest you contact either Mr. Adams or Commerce Bank to acquire a copy or have a court subpoena the appraisal in which case I am then required to release it to the court. I am sorry that I cannot help you, however the Code of Ethics of The Appraisal Institute strictly prohibits me from breaching the confidentiality of the appraiser/client relationship in the manner you request. I trust that you will discontinue pressuring me for a copy of the appraisal since I have now indicated on several occasions that I cannot provide it for you and maintain compliance with our Code of Ethics. Yours truly, Kirsh valuation group gy: GZGucluc~ Laurence A. irs AI, esident LAH/sa cc: George Adams Al Bradley, Commerce Bank 4775 linglestown road • harrisburg, pe. 17112 phone 717-652-9600 • fax 717-652-e267 3 ;:; ~ c -c .T. '. x.' ~ ~ ~ < frRi .~ ~ 1 tlvl~4 SHERIFF'S RETURN COMMONWEALTH OF PENNSYLVANIA In the Court of Common Pleas of COUNTY OF CUMBERLAND Cumberland County, Pennsylvnaia No. 1070 Civil Term 1994 Frank Wilson Complaint in Civil Action Law and Notice To Defend VS Laurence A. Hirsh and Charles F. Schubert, Jr. and Commerce Bank/Harrisburg SERVE: Laurence A. Hirsh R. THOMAS KLINE, Sheriff, who being duly sworn according to law, says, that he made diligent search and inquiry for the within named defendant, to wit: Laurence A. Hirsh but was unable to locate him in his bailiwick. He therefore Dauphin deputized the sheriff of County, Pennsylvania, to serve the within Complaint To Defend in Civil Action Law and Notice On May 31, 1994 the attached return from Dauphin Sheriff's Costs: Docketing 14.00 Out of County 5.00 Surcharge 2.00 Dauphin County 25.50 $ 46.50 pd. by Sworn and subscribed to before me this ~ ~' day of ,~,~ 19 4y A.D. ..n .t. Prothonotary this office was in receipt of County, Pennsylvania. So answers: /'~ ~ ~ . THOMAS KLINE, Sheriff atty 5-31-94 ~3 r, C:.~. ~.4\.4.~.-~ ~.;t 11, I 1 fir. j.Jyi ~r~~il~ ~•~ ^UI? CY C_°.:ili~~ ~:a._S :dY L'J;.._.".....il:...~ I ~"1 ~ ry::l li• lir. ~~ Frank Wilson -; S. Laurence A. Hirsh Vo. 1070Civil _1994 :o~• May 18 , 19 9 4 ;q--. ?. S' =~-=- " O. r~.f~~.~.r?u~'J CJ ~'•`i'='Y, ~ ~-, co ~i ow, :,.. ~:, Dauphin Cou: tv :a =..-^_~•.w. -=is ~Y=~ ..=..~v G--u~ ~.. .,._-~-~ of .s ^..~u~.~:a c:~ :_.a ,c as -~- -~*.:..--t ~ci :sir of =..~ ?..~. ~~^.3 of C-.:.~. :tea Cst::rp. ?3. ~"1G~Z4I~ OI .~.~~" 7IC° ~7ow, --, - •~LOa - ~t ~v ~c:~ :o a C~B'7 CL ri' ~:.T..^.~ 2'SQ ~ Y.."oWn ~ ~.~ :.~:.I'."..'3 .....".L SO 3~ SWCS• .~LC~ OT SMrar zad r~iwsc:~e3 bcczt . .c :~ ~q of s a C^S ~~r'IC l~~_-~C-~ ... 3.='t'Dr1 v i i J CoLiaL}-, ?1 ._~. S y~ COMMONWEALTH OF PENNA: COUNTY OF DAUPHIN SHERIFF'S RETURN NO. 1070 Civil 1994 PAGE 78 AND NOW: May 23, 19 94 ,at 2:00 PM. WITHIN COMPLAINT & NOTICE Lauarence A. Hirsh HANDING TO Lawrence A. Hirsh SERVED THE UPON BY PERSONALLY A TRUE ATTESTED COPY OF THE ORIGINAL COMPLAINT & NOTICE AND MAKING KNOWN TO Him THE CONTENTS THEREOF AT 4775 Linglestow!- Rd., Harrisburg, Dauphin County, Penna. ~S ~O • FRANK WILSON, Plaintiff v. . LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., and COMMERCE BANK/HARRISBURG Defendants . • IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 1070 CIVIL 1994 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD T0: FRANK WILSON, Plaintiff and his attorney, LAWRENCE J. NEARY, Esquire You are hereby notified to file a written response to the within New Matter within 20 days from service hereof or a judgment may be entered against you. McNEES, WALLACE & NURICK Attorneys for Defendants Laurence A. Hirsh and Charles F. Schubert, Jr. July 1~ , 1994 ~~ I.D. No. 49674 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108 (717) 232-8000 FRANK WILSON, . Plaintiff : v. . LAURENCE A. HIRSH and . CHARLES F. SCHUBERT, JR., and COMMERCE BANK/HARRISBURG Defendants : • IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 1070 CIVIL 1994 CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF DEFENDANTS LAURENCE A. HIRSH AND CHARLES F. SCHUBERT, JR. TO PLAINTIFF'S AMENDED COMPLAINT 1. Denied. After reasonable investigation, Defendants Laurence A. Hirsh ("Hirsh") and Charles F. Schubert, Jr. ("Schubert") (hereinafter sometimes collectively referred to as "Answering Defendants") are without knowledge and information sufficient to form a belief as to the truth of these averments, and the same are therefore denied. 2. Admitted. 3. Admitted, except that Defendant Schubert's mailing address is P.O. Box 520, North Conway, New Hampshire 03860-0520. 4. Admitted. 5. Denied as stated. Weinstein - Hirsh Appraisal Group was a corporation which was engaged in the business of providing real estate appraisals in 1988. That corporation has since been dissolved. A7 • s 6. Denied as stated. In or about June 1988, the former corporation of Weinstein - Hirsh Appraisal Group was requested by George J. Adams ("Adams") to perform an appraisal of the fee simple interest in property located at 3507 Market Street, Camp Hill, Pennsylvania, assuming completion of construction, for the benefit of Commerce Bank. 7. Denied as stated. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 7 of Plaintiff's Complaint, and the same are therefore denied. By way of further answer, at the time that Answering Defendants performed their appraisal, they were informed that the property was under contract to Adams-Molinari Properties from Wilson, Garn and McKee. 8. Denied as stated. Paragraph 6, above, is incorporated herein by reference. By way of further answer, the appraisal was partially based on limited plans and specifications for future construction as provided by Adams. Answering Defendants were not aware that the proposed office building was to be constructed by a construction company owned by George J. Adams. 9. Denied as stated. Paragraphs 6 and 8, above, are incorporated herein by reference. The appraisal report was prepared by Answering Defendants, and was certified by Answering Defendants and by the Weinstein - Hirsh Appraisal Group. The appraisal report was submitted to Commerce Bank on or about October 19, 1988. The appraisal set forth the conclusion that - 2 - AX • the value of the fee simple interest of the proposed office building when completed was $925,000. 10. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 10 of Plaintiff's Complaint, and the same are therefore denied. 11. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 11 of Plaintiff's Complaint, and the same are therefore denied. 12. Denied as stated. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 12 of Plaintiff's Complaint, and the same are therefore denied. By way of further answer, it is admitted that a copy of the appraisal was submitted to Commerce Bank. The date of said appraisal was October 19, 1988, and not October 29, 1988, as alleged in Plaintiff's Complaint. 13. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 13 of Plaintiff's Complaint, and the same are therefore denied. 14. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 14 of Plaintiff's Complaint, and the same are therefore denied. - 3 - ~y • 15. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 15 of Plaintiff's Complaint, and the same are therefore denied. By way of further answer, the value of the fee simple interest in the property located at 3507 Market Street, Camp Hill, Pennsylvania, assuming completion of construction, was $925,000.00, as reflected in the appraisal prepared by Answering Defendants. 16. Denied as stated. With respect to the averments concerning the performance of the appraisal, Paragraphs 6, 8 and 9, above, are incorporated herein by reference. Based upon the limited plans and specifications for future construction provided to the Weinstein - Hirsh Appraisal Group by Adams, Answering Defendants proceeded to perform their appraisal on the basis that the proposed building would contain 9,159 square feet and a net leasable area of 7,500 square feet. 17. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 18 of Plaintiff's Complaint, and the same are therefore denied. 18. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 18 of Plaintiff's Complaint, and the same are therefore denied. 19. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to - 4 - ~'G • • form a belief as to the truth of the averments of Paragraph 19 of Plaintiff's Complaint, and the same are therefore denied. 20. Admitted. By way of further answer, as reflected in Exhibit A to Plaintiff's Complaint, Defendant Hirsh advised Plaintiff of the reason why he could not furnish a copy of the appraisal to him, and gave Plaintiff specific suggestions as to how he could proceed to obtain a copy of the appraisal. 21. Denied. Paragraph 21 sets forth conclusions of law to which no responsive pleading required. To the extent that an answer is deemed necessary, however, Paragraph 21 is denied. With respect to the averments concerning the preparation of the appraisal and the contribution to that appraisal by Adams, Paragraphs 6, 8, 9 and 16, above, are incorporated herein by reference. With respect to the averments that Plaintiff has been "forced to contribute" certain sums to a partnership and for operating expenses, and the existence of a deficiency, said averments are denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments, and the same are therefore denied. With respect to the averment that the appraisal performed by the Weinstein - Hirsh Appraisal Group was "incorrect," said averment is denied. That appraisal was done accurately and correctly under the circumstances, as set forth above. 22. Denied. Paragraph 22 sets forth conclusions of law to which no responsive pleading is required. To the extent that an - 5 - ~~ • answer is deemed necessary, however, Paragraph 22 is denied. With respect to the averments concerning the appraisal, Para- graph 21, above, is incorporated herein by reference. With respect to the averments concerning Plaintiff's execution of a note, and the existence of a purported delinquency, and Plaintiff's purported inability to refinance, and as to the present value of the "Market Street project," said averments are denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments, and the same are therefore denied. COUNT I Frank Wilson v. Laurence A. Hirsh and Charles F. Schubert, Jr. 23. Denied. Paragraphs 1 - 21, above, are incorporated herein by reference. 24. Paragraph 24 sets forth conclusions of law to which no responsive pleading is required. To the extent that an answer is deemed necessary, however, it is denied that Answering Defendants owed any duty to Plaintiff. On the contrary, Answering Defendants and Weinstein - Hirsh Appraisal Group were retained by George Adams to perform an appraisal to be used in securing financing from Commerce Bank. 25. Denied. Paragraph 25 sets forth conclusions of law to which responsive pleading is required. To the extent that an answer is deemed necessary, however, Paragraph 25 is denied. Paragraph 24, above, is incorporated herein by reference. By way - 6 - 92 ~l of further answer, at all times Answering Defendants did not violate any duty whatsoever to Plaintiff, did not act negligently, carelessly, or unskillfully. Answering Defendants made no misrepresentations whatsoever. The appraisal was done accurately and correctly under the circumstances. 26. Denied. Paragraph 25, above, is incorporated herein by reference. WHEREFORE, Answering Defendants Laurence A. Hirsh and Charles F. Schubert, Jr. demand judgment in their favor, together with costs, and against Plaintiff Frank Wilson. COUNT II Frank Wilson v. Laurence A. Hirsh and Charles F. Schubert, Jr. 27. Denied. Paragraphs 1-21 are incorporated herein by reference. 28. Denied. Paragraph 28 sets forth conclusions of law to which no responsive pleading is required. To the extent that an answer is deemed necessary, however, Paragraph 28 is denied. It is denied that either Answering Defendant had any contractual obligation with respect to the preparation of the appraisal. In the alternative, it is denied that Frank Wilson was a third-party beneficiary of any .contractual obligation, the existence of any contractual obligation being denied. 29. Denied. Paragraph 29 sets forth conclusions of law to which no responsive pleading is required. To the extent that an answer is deemed necessary, however, Paragraph 29 is denied. Paragraph 28, above, is incorporated herein by reference. By way - 7 - X13 of further answer, Paragraph 25, above, is incorporated herein by reference. 30. Denied. Paragraph 30 sets forth conclusions of law to which no responsive pleading is required. To the extent that an answer is deemed necessary, however, Paragraph 30 is denied. Paragraphs 28 and 29, above, are incorporated herein by reference. Neither Answering Defendant was a party to any contract with respect to the performance of the appraisal, there was no breach of any contract with respect to the performance of the appraisal, and Plaintiff was not a third-party beneficiary with respect to any contract concerning the performance of the appraisal. With respect to Plaintiff's averments concerning "losses," said averments are denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments, and the same are therefore denied. WHEREFORE, Defendants Laurence A. Hirsh and Charles F. Schubert, Jr. demand judgment in their favor, together with costs and against Plaintiff Frank Wilson. COUNT III Frank Wilson v. Commerce Bank 31-36. Paragraphs 31-36 are addressed to a Defendant other than Answering Defendants, and therefore no responsive pleading by them is required. To the extent that an answer is deemed necessary, however, Paragraphs 31-36 are denied. Paragraphs 1-30, above, are incorporated herein by reference. - 8 - ~7 • NEW MATTER 37. Paragraphs 1-36, above, are incorporated herein by reference. 38. Plaintiff's claims are barred by the applicable statutes of limitations. 39. Plaintiff's Complaint fails to state a claim against Answering Defendants upon which relief can be granted. 40. Plaintiff's claims are barred by the doctrines of waiver and estoppel. 41. To the extent Plaintiff's claims against Answering Defendants sound in negligence, any negligence on the part of - 9 - ~~ • Answering Defendants being specifically denied, Plaintiff's claims are barred or reduced by Plaintiff's comparative negligence, pursuant to Pennsylvania's Comparative Negligence Act. WHEREFORE, Defendants Laurence A. Hirsh and Charles F. Schubert, Jr. demand judgment in their favor, together with costs and against Plaintiff Frank Wilson. McNEES, WALLACE & NURICK Attorneys for Defendants Laurence A. Hirsh and Charles F. Schubert, Jr. July 1 / , 1994 - 10 - 7~ I.D. No. 49674 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108 (717) 232-8000 • VERIFICATION Subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities, I hereby certify that I am a Defendant named herein, and that the facts set forth in the foregoing Answer with New Matter are true and correct to the best of my knowledge or information and belief. Lauren a A. 1r h July ~ , 1994 1/ • VERIFICATION • Subject to the penalties'of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities, I hereby certify that I am a Defendant named herein, and that the facts set forth in the foregoing Answer with New Matter are true and correct to the best of my knowledge or information and belief. July ~ , 1994 ~/8 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing Answer with New Matter was served by first-class mail, postage prepaid, upon the following: Lawrence J. Neary, Esquire Connelly, Reid, & Spade P.O. Box 963 Harrisburg, PA 17108 (Attorneys for Plaintiff) Daniel L. Sullivan, Esquire Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (Attorneys for Commerce Bank) July /~ , 1994 Of Counsel for"~fendants Laurence A. Hirsh and Charles F. Schubert, Jr. ~~ ~' rv cJ3 k. _~ -•' i.0 .3C. PRAE~E FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY/OF CUMBERLAND COUNTY: Please list the within matter for the next: Pre-Trial Argument Court ^ Argument Court CAPTION OF CASE (entire caption must be stated in full) FRANK WILSON c~? (Plaintiff) . ~ ~-~e "'x v$. ~ ry'i ~ rn ..'r. ~ sn _ ~~ z ~s ~-~ f LAURENCE A. HIRSH, CHARLES F. .~;~x-,. b» ~ o ~ s'' SCHUBERT, JR., and COMMERCE BANK/HARRISBURG t;.~ ~rti (Defendant) ~ ~ vs. ~ -< ~- fl f~ No. 1070 Civil l9 94 1. State matter to be argued (i. e., plaintiff s motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Commerce Bank/Harrisburg Preliminary Objections 2. Identify counsel who will argue case: (a) for plaintiff: Lawrence J. Neary (238-4776) (b) f^r defendant: Daniel L. Sullivan (232-5000) 3. I will notify all parties in writing within two da~~s that this case has been listed for argument. _ Dated: 11 / 15 / 94 job FRANK WILSON, IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 1070 CIVIL 1994 LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., and : CIVIL ACTION -LAW COMMERCE BANK/HARRISBURG, Defendants IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS Before SHEELY, P.J.. HOPPER, J. and OLER, J. ORDER OF COURT AND NOW, ,1995, after careful consideration of the parties' briefs and oral arguments, the preliminary objection in the nature of a demurrer of Defendant Commerce Bank is granted. Lawrence J. Neary, Esquire 108-112 Walnut Street PO Box 963 Harrisburg, PA 17108 For the Plaintiff ~. Daniel L. Sullivan, Esquire 304 North Front Street PO Box 5950 Harrisburg, PA 1 71 1 0-0950 For the Defendant J. t . ~--~ ~. ~ _~ ' r _ ;~, ~`~ .~.~ l02 By the Court, • FRANK WILSON, IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 1070 CIVIL 1994 LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., and : CIVIL ACTION -LAW COMMERCE BANK/HARRISBURG, Defendants IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS Before SHEELY. P.J.. HOPPER. J. and OLER. J. OPINION HOPPER. J.: This case arises from a dispute regarding a construction loan entered into by Defendant Commerce Bank and the partnership of Wilson, Garn & McKee. Plaintiff Frank Wilson is a partner in Wilson, Garn & McKee. (Complaint, ¶7.) The Plaintiff's complaint alleges that Commerce Bank issued a financing commitment letter on February 14, 1989, which conditioned closing on the construction loan upon the submission of an appraisal of a 9,500 square foot office building which would have a value of $800,000 upon completion of construction. (Complaint, ¶ 10.) The Plaintiff's complaint further alleges that the construction loan and security agreement dated March 29, 1989, between the partnership and Commerce Bank conditioned disbursement of funds under the construction loan upon the submission of "an appraisal of the property and the .~ 1070 CIVIL 1994 improvements prepared by an appraiser, inform and amount satisfactory to bank." (Complaint, ¶11.) In order to fulfill these requirements, an appraisal was prepared by Defendants Lawrence A. Hirsh and Charles F. Schubert, Jr. (Complaint, ¶16.) This appraisal was subsequently submitted to Commerce Bank. (Complaint, ~ 12.) The Plaintiff's complaint alleges that Defendants Hirsh and Schubert improperly performed the appraisal, arriving at an erroneously high value for the property based on an inflated estimation of the net leasable area of the building. (Complaint, ¶¶16, 17.) The Plaintiff alleges that Commerce Bank knew or should have known that the Plaintiff would rely upon the appraisal in determining whether the project was economically feasible (Complaint, ¶32), and asserts that Commerce Bank ratified the appraisal by accepting it in satisfaction of the construction loan agreement requirements. (Complaint, 1133.) In attempting to plead a cause of action in negligence against Commerce Bank, the Plaintiff asserts that Commerce Bank owed a duty to the Plaintiff to review the conclusions of the appraisal. (Complaint, 1(34.) Plaintiff further alleges that Commerce Bank breached this duty in failing to properly examine the contents of the appraisal and in failing to identify errors with regard 2 ivy • • 1070 CIVIL 1994 to the net leasable area of the proposed building. (Complaint, ¶¶34, 35.) Finally, the Plaintiff avers that this breach of duty resulted in economic harm. (Complaint at ¶¶21, 22.} Commerce Bank has filed a preliminary objection in the nature of a demurrer asserting that the bank was under no duty to the Plaintiff and, in the absence of a duty, that the Plaintiff may not plead a cause of action in negligence. We address this preliminary objection. Discussion In analyzing a pleading for purposes of a demurrer, a reviewing court is required to admit all well-pleaded facts and any inferences which are reasonably deductible from those facts. Stempler v. Frankford Trust Co., 365 Pa. Super 305, 529 A.2d 521 (1987). "The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible." Valtimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232 (1983). A preliminary objection in the nature of a demurrer should only be granted in cases which are clear and free from doubt and where the complaint clearly fails to state a cause of action. Britt v. Chestnut Hill College, _, Pa. Super. _, 632 A.2d 557 (1993). In order to determine whether the complaint in the instant case 3 ~~ ~ 1070 CIVIL 1994 adequately states a claim for relief, it is necessary to examine the elements underlying a negligence claim. It is axiomatic that in order to state a cause of action for negligence, the Defendant must owe a duty of reasonable care to the Plaintiff. Stempler, 365 Pa. Super. at 309-310, 529 A.2d at 523. In the context of duties which may arise between a borrower and a lender, the general rule is that "there is no duty on the part of a lender to inspect mortgaged property to determine that the borrower is obtaining that ...which he believes he is obtaining.° Federal Land Bank of Baltimore v. Fetner, 269 Pa. Super. 455, 462, 410 A.2d 344, 348 (1979). Applying this general principle to a situation involving an erroneous appraisal, the Superior Court reached a similar result. Stempler v. Frankford Trust Co., 365 Pa. Super. 305, 529 A.2d 521 (1987). Noting that "an inspection of property is made only to ascertain whether the property has sufficient value to secure the loan and is made by the lender for his sole benefit," the Court concluded that there is no duty owed by a borrower to a lender to inspect property to determine its condition. Id. at 310, 529 A.2d at 523. Although the case before this Court does not involve an error with regard to an inspection, we find that the appraisal in the instant case is analogous to an inspection. Applying the aforementioned principles to the case at bar, we find that the Plaintiff has alleged no basis for any duty owed by Commerce Bank. 4 /06 • • 1070 CIVIL 1994 The mere allegations that Commerce Bank ordered and received an appraisal of the property in question do not suffice to set forth a cause of action in negligence. Accordingly, the demurrer of Commerce Bank is granted and the Plaintiff s claim against Commerce Bank is dismissed. 5 f~ 7 7 4 FRANK WILSON IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA N©. aa~ ~,GG~-. 199 5 v. No. 1070 CIVIL 1984 LAURENCE A. HIRSH and CIVIL ACTION -LAW CHARLES F. SCHUBERT, JR., and COMMERCE BANK/HARRISBURG, Defendants :JURY TRIAL DEMANDED NOTICE OF APPEAL NOTICE IS HEREBY GIVEN that Frank Wilson, Plaintiff above named, hereby appeals to the Superior Court of Pennsylvania from the Order entered in this matter on February 8, 1995, granting the Preliminary Objections of Defendant, Commerce Bank/Harrisburg. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. Date: ~~~ ~9,~ Respectfully Submitted, CONNELLY, REID & SPADE By: ~~rdFen . Neary, Esq it ttorn for Plaintiff 108 112 Walnut re P. O. Box 963 Harrisburg PA (717) 238-4776 (717) 238-4793 - Telecopier Pa. I.D. No. 25827 fag • CERTIFICATE OF SERVICE I, Lawrence J. Neary, Esquire, of Connelly, Reid, & Spade, attorneys for Plaintiff hereby certify that I have on the date shown below, served a copy of the foregoing Notice of Appeal to the person(s) and in the manner indicated below: UNITED STATE FIRST CLASS MAIL, POSTAGE PREPAID Daniel L. Sullivan, Esquire METTE, EVANS & WOODSIDE 3401 N. Front Street P. O. Box 5950 Harrisburg PA 17110-0950 Harvey Freedenberg, Esquire MCNEES, WALLACE & NURICK 100 Pine Street Harrisburg PA 17101 Honorable George E. Hoffer Cumberland County Court Administrator CUMBERLAND COUNTY COURTHOUSE CUMBERLAND COUNTY COURTHOUSE 1 Courthouse Square 1 Courthouse Square Carlisle PA 17013 Carlisle PA 17013 Office Court Reporter Cumberland County Court CUMBERLAND COUNTY COURTHOUSE 1 Courthouse Square Carlisle PA 17013 Date: ~ By CONNELLY, REID & SPADE l09 PY5510 Cumber nd County evil Case 1994-01070 COMPLAINT Judge Assigned: SHEELY HAROLD E PJ Judgment: .00 Prothonotary's fice Page 1 Inquiry filed......... 3/03/04 'Superior Co Execution Date 0/00/00 Sat/Dis/Gntd.. 0/00/00 Jury Trial.... ******************************************************************************** General Index Attorney Info WILSON FRANK PLAINTIFF NEARY LAWRENCE J WEINSTEIN - HIRSH APPRAISAL DEFENDANT SULLIVAN DANIEL L GROUP COMMERCE BANK/HARRISBURG DEFENDANT SULLIVAN DANIEL L ******************************************************************************** * Date Entries * ******************************************************************************** 03/04/94 COMPLAINT - CIVIL ACTION 03/21/94 SHERIFF'S RETURN FILED ((SHFF SERVED DEFT COMMERCE BANK HARRISBURG 3/9/94; DEFT WEINSTEIN-I~IRSH APPRAISAL GROUP NOT FOUND 3/15/94) SHFF'S COSTS 60.90 PD ATTY 03/24/94 PRELIMINARY OB ECTION OF DEFENDANT COMMERCE BANK 03/28/94 MOTION FOR LEAVE TO AMEND COMPLAINT AND RULE TO SHOW CAUSE BY JUDGE HAROLD E SHEELY PJ 05/11/94 MOTION TO MAKE RULE ABSOLUTE AND ORDER BY JUDGE HAROLD E SHEELY 05/17/94 AMENDED COMPLAINT 06/09/94 SHERIFF'S RETURN FILED SHFF SERVED DEFT LAWRENCE A HIRSH 5/23/94) SHERIFF'S COSTS $46.50 D ATTY 07/12/94 ANSWER AND NEW MATTER OF DEFENDANTS LAURENCE A HIRSH AND CHARLES F SCHUBERT JR TO PLAINTIFFS AMENDED COMPLAINT 02%08%95 OPNIONEANDRORDERIOF COURTFORINRREMDEFENDANTWSEPRELIMINARY ESQ OBJECTIONS BY JUDGE GEORGE E HOFFER COPIES MAILED 2/8/95 ******************************************************************************** * Escrow Information * * Fees & Debits Be~ Bal P~rmts/Ad~ End Bal ******************************** ******** ****** ******************************* LED COMPLAINT F 35 50 35 , TAX ON CMPI,~ : 0 ;50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5.00 -------------- 5.00 ---------- --- .00 --------- 45.50 45.50 00 ******************************************************************************** * End of Case Information * ******************************************************************************** T~cuE coP~r F~oM ~o~ ~n 7estimotty wfiereof, t here ur-to sit my hi~n/ i~std th '~f of oyrt ai isle. i~. ;~v t .-, -~. ~ ~ ~' ~~~~ ~ ~~ ~ va ;„ ,~ ~ ,; .,... f,. .w, - C:: !V ~.; ~~ ~~~~~ z~• t,~ ! ~~ ~'~ ~ ~~ `~\ C .. ,. ~ ,- ~--1s -9S R ~~ Superior Court of Pennsylvania Office of the Prothonotary 434 Main Capitol Building P.O. Box 9300 Harrisburg, Pennsylvania 17108 (717) 772-1294 March 14, 1995 Notice of Appeal Docketing Superior Court Docket No. Assigned 0 O~LI~3~9 ^/p, q~_ 1070 L'u,~ T~tirw PROTHONOTARY Cumberland COUNTY Cumberland Cty. Courthouse Carlisle, Pa 17013 RE: Wilson, F V Hirsh, L Shubert, C Comm Bank You are hereby advised that the attached docket information has been entered into the superior court records in a case in which you appear as an officer of the court. Please review this information carefully and notify this office immediately if you believe correction(s) are in order. Thank you. David A. Szewczak Prothonotary 1~~ -*r OF PENNSYLV~IA SUPERIOR COURT DOCKET 03/14/95 OFFICIAL 1019 DOCKET # 00224HBGg5 jqg~ No. ~O'1D FULL CAPTION WILSON OO1T FR~V AND CKp,RLES F SCHUBERT JR LAURENCE A HIRSH FOR 002E ~D COMMERCE BANK/HARRISBURG TITLE 003E 001T COUNSEL LAWRENCE JOHN NEARY 25827 112 WALNUT STREET 717-238_4776 108- p O BOX 963 17108 002E HARRISBURG, PA Hp,RVEY FRE LACEB &RNL7RI CK 23152 BOX 1166 MCNEES W S',r ~ P . O , 100 PINE PA 17108 HAR.RI SBURG , D~IEI, L SULLIVAN STREET 34548 3401 NORTH FRONT P O BOX 5950 0950 gp,RRISBURG, PA 17110- CONSOLIDATED DOCKET NUMBER' BACKGROUND DATA TRIAL COURT RECORDS CATEGONYp,ME : COURT COUNTY: JUDICIAL DISTRICT: CASE TYPE/CHARGE: TRIAL COURT CHARGES: JUDGE ~ S ~ ~ TYPE DISPOSITION DISpOSIFIOE DATE: APPEAL ENTERED: DISFOSITIONDOCKET NO.~ TRIAL CRT CKING NO.: OFFENSE Tom' CV CIVIL CUMBERLAND 09 MAIL Y Y 717_232-8000 003E 717_232-5000 HOFFER, G ORDER ENTERED 02/08/95 03/09/95 1070 CIVIL 1994 STATUS INFORMATION S,I,ATEMENT DUE 03/28/95 DOCKET CD RT RECORD DUE 04/18/95 LOWER DOCKET ENTRINOTICE OF APPEAL EXITED 03/14/95 DOCKETING STATEMENT 03/14/95 *_ T_pppELLANT E=APPELLEE FOR OO1T OO1T Y a ~c B ~,t ~ • CERTIFICATE AND TRANSMITTAL OF RECORD UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (c To the Prothonotary of the Appellate Court to which the within matter has been appealed: SUPERIOR OQJRT OF PEI~SYLVANIA THE UNDERSIGNED, Prothonotary of the Court of Common Pleas of Cif County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Case No. 94-1070 Civil Term; No. 424 HBG 1997 FRANK WILSON VS. WEINSTEIN-HIRSH APPRAISAL GROUP, AND G~MMERCE BP.NK/HBG The documents comprising the record have been numbered from No. 1 to No. 579 and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the appellate court is June 24th, 1997 , (Seal of Court) /ltti~- Prothonotary An additional copy of this certificate is enclosed. Flease sign and date copy, thereby acknowledging receipt of this record. RECORD RECEIVED: Date: (signature & title) i 5 / • • 1 FRANK WILSON, v. Plaintiff LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., and COMMERCE BANK/HARRISBURG, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 1070 CIVIL 1994 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS 1. Plaintiff's Amended Complaint against Laurence Hirsh ("Hirsh") and Charles F. Schubert, Jr. ("Schubert") arises out of an appraisal made by Hirsh for Commerce Bank in conjunction with a construction loan between Commerce Bank and the partnership of Wilson, Garn, and McKee dated March 29, 1989. 2. Plaintiff's Amended Complaint alleges that Weinstein- Hirsh Appraisal Group was requested to perform an appraisal for a proposed office building for the premises now known as 3507 Market Street, Hampden Township, Cumberland County, Pennsylvania by George J. Adams. At the time of the appraisal, Hirsh and Schubert were informed that such property was under contract to Adams-Molinari Properties from Wilson, Garn, and McKee. (Amended Complaint, ¶6; Answer to Amended Complaint, ¶7). 3. This appraisal was requested by George J. Adams for the purpose of obtaining financing for the construction of a proposed office building and to establish the market value of the real 113 • • estate and proposed construction as completed. (Amended Complaint, ¶8). 4. Pursuant to this request, Defendants Hirsh and Schubert prepared an appraisal report addressed to Commerce Bank on October 19, 1988. 5. The Construction Loan and Security Agreement, dated March 29, 1989, between the partnership of Wilson, Garn, and McKee and Commerce Bank conditioned disbursement of funds under the construction loan upon the submission of "an appraisal of the property and the improvements prepared by an appraiser, in form and amounts satisfactory to bank." (Amended Complaint, ¶~11, 9(k) of Construction Loan Agreement; Answer and New Matter of Defendants Hirsh and Schubert to Plaintiff's Amended Complaint, ¶12) . 6. The appraisal for this proposed 9,500 square foot office building established a market value when completed to be Nine Hundred Twenty-Five Thousand Dollars ($925,000.00). (Amended Complaint, ¶¶9, 10; Answer to Amended Complaint, ~9). 7. This appraisal was submitted by Answering Defendants on October 19, 1988 only to Commerce Bank. 8. This appraisal was based upon the limited plans and specifications for future construction provided to Hirsh and Schubert by Adams on the basis that the proposed office building would contain 9,159 square feet and a net leasable area of 7,500 - 2 - ~~c~ • • square feet. (Amended Complaint, ¶16; Answer to Amended Complaint, ¶16). 9. Unknown to Hirsh and Schubert, Plaintiff alleges that the site. plan as approved by the Hampden Township Zoning Hearing Board on October 12, 1988, allowed for an office building containing only 6,450 square feet of net rentable office area. (Amended Complaint, ¶17; Answer to the Amended Complaint, ¶17). 10. Plaintiff alleges that the proposed building upon completion was only worth $600,000 as opposed to $925,000 resulting in a loss of $325,000 to the Plaintiff. (Amended Complaint, ¶¶15, 20). 11. Plaintiff admits that he did not hire Defendants to perform the appraisal, as Defendants were hired by George Adams and the property was under contract to Adams Molinari Properties at the time of the appraisal, and that the appraisal was addressed only to Mr. Dwayne Beech of Commerce Bank. As such, at no relevant period of time was Plaintiff provided a copy of the appraisal. (Amended Complaint, Exhibit "A"). 12. Defendant Hirsh specifically advised Plaintiff that the Code of Ethics of the Appraisal Institute strictly prohibited him from breaching the confidentiality of the appraiser/client relationship in the manner requested by Plaintiff. (Amended Complaint, Exhibit "A"). - 3 - 115 • • 13. Despite never hiring Defendants to perform the appraisal nor ever receiving a copy of the appraisal during any relevant period of time, Plaintiff alleges that Hirsh and Schubert owed a duty to him to properly and correctly appraise the value of the proposed construction, and violated that duty to the Plaintiff by not properly preparing the appraisal. (Amended Complaint, ¶¶24, 25) . 14. Hirsh and Schubert did not owe any duty to Plaintiff. On the contrary, Hirsh and Schubert and Weinstein-Hirsh Appraisal Group were retained by George Adams to perform an appraisal to be used in securing financing from Commerce Bank. Any duty owed by Schubert and Hirsh was, therefore, to Commerce Bank. (Answer to Amended Complaint, ¶24). 15. Such a finding that Hirsh and Schubert did not owe a duty to Plaintiff under these circumstances is consistent with this Court's Opinion and Order dated February 8, 1995 granting the demurrer of Commerce Bank upon a finding that the bank was under no duty to the Plaintiff and, in the absence of a duty, that the Plaintiff may not plead a cause of action in negligence. 16. Plaintiff has also alleged that he is a third party beneficiary of the contractual obligation imposed upon Hirsh and Schubert to prepare an appraisal for the proposed construction and that Hirsh and Schubert breached this contractual obligation - 4 - - u ., causing harm to Plaintiff as a third party beneficiary. (Amended Complaint, ¶¶28, 29 and 30). 17. The appraisal in question was an express condition placed upon the construction financing agreement by Commerce Bank. The appraisal was done for the sole protection and benefit of Commerce Bank to insure that it was extending financing to an economically viable construction project. There was never expressed within the contract to perform appraisal services an intention or purpose to confer a benefit upon Plaintiff. In fact, such an appraisal would not have been necessary had it not been a requirement to the securing of financing by the bank. The bank required the submission of the appraisal for one reason: Since collateral for the loan was the property itself, the bank was attempting to make certain that the loan was properly secured. (See Commerce Bank Brief in Support of Preliminary Objections, page 6). 18. Under these circumstances, Plaintiff is not a third party beneficiary of the contract to perform appraisal services under Pennsylvania law. WHEREFORE, Defendants Laurence A. Hirsh and Charles F. Schubert, Jr. respectfully request that this Court grant Defendants' Motion for Judgment on the Pleadings and enter an Order dismissing the Complaint with prejudice as to Hirsh and Schubert as these Defendants owe no duty to Plaintiff sufficient - 5 - 117 necessary to support a negligence claim, and Plaintiff cannot be considered a third party beneficiary to the contract for appraisal services. McNEES, WAI~.Ar2~-~, NURICK Dated : $~//~~/f ~~ VHarv Fre n erg I.D No. 2 152 Mic ael R. e ey I.D. No. 58854 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr. - 6 - I lR • • CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Lawrence J. Neary, Esquire Connelly, Reid, & Spade P.O. Box 963 Harrisburg, PA 17108 (Attorneys for Plaintiff) Daniel L. Sullivan, Esquire Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (Attorneys for Commerce Bank) de Of Counsel for Defendants Laurence A. Hirsh and Charles F. Schubert, Jr. Dated: ,S~//~'/f~~ ,v ~,t t.~.` :~ ;:~;; ,~!- 5-1`f -45 PRAECIPE FOR LISTING CASE FOR ARC(_'ti9ENT (Must be typewritten and submitted in duplirttel TO THE PROTHONOTARY/OF CUMBERLAND COUNTY: Please list the within matter for the next: Pre-Trial Argument Court Argument Court CAPTION OF CASL: (entire caption must be stated in fulll FRANK WILSON, vs. (Plaintiff) LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., and COMMERCE BANK/HARRISBURG, (Defendant) vs. ,_ r._, ~C A ~+!S --a W ~tf ~. `` ~ cs'a cn No. ~ 070 Action - Law 94 Civil -- 19 __ _ 1. State matter to be argued (i. e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Motion for Judgment on the Pleadings 2. Identify counsel who will argue case: (a) for plaintiff: Lawrence J. Neary, Esquire (b) for defendants Laurence A. Hirsh and Charles F. Schubert, Jr. : Harvey Freedenberg, Esquire and Michael R. Kelley, Esq. (c) for defendant Commerce Bank: Daniel L. Sullivan, Esq. 3. I will notify all parties in writing within two days that this case has been listed for argument. ttorne or D en nts ) our ce A, h and Charles F. Schubert, Jr. Dated: S~ ~i~/y~~ FRANK WILSON, • Appellant v. LAURENCE A. HIRSH AND CHARLES F. SCHUBERT, JR., AND COMMERCE BANK/HARRISBURG No. 00224 Harrisburg 1995 (C.P. Cumberland County No. 1070 Civil 1994) O R D E R The trial court order of February 8, 1995, is not final and appealable because it does not dismiss all claims or parties, is not defined as final by statute nor does it include the "express determination that an immediate appeal would facilitate resolution of the entire case." Pa.R.A.P. 341(b) Therefore, the Court grants the motion to quash the appeal. The appellant's request for an opportunity to petition the lower Court for determination of the finality of the order is denied. PER CURIAM DATE: May 19. 1995 TRUE AND CORRECT COPY ATTEST: May 19, 1995 •~ Chief Clerk - Harrisburg District Superior Court of Pennsylvania • ~~ 7-IC7-~~ IN THE SUPERIOR COURT OF PENNSYLVANIA o c._. ~ 4 ?'YI l_ T C'7 f:i: ;: ~ iµ ~r. , ~ : z ~, c~ :.. s~- ,,., 3 "` _` ~j'1 `~- • -~r `(~~,~ ~Sl~t.~rtIIr ~D'ltr# IIf `~.emt~$'~jb~~Citt t®ffirP of #i~~e bra#I~ana#ttr~ P. 0. BOX 9300 434 MAIN CAPITOL BUILDING DAVID A.SZEWCZAK, ESQUIRE HARRISBURG, PENNSYLVANIA 17108 PROTHONOTARY PATRICIA A.]~D[CEl~IIECC Wh i t t a ke r CNIEf CLERK M E M O RAN D U M DATE: May 19, 1995 T0: Daniel L. Sullivan, Esq. FROM: Patricia A. Whittaker, Chief Clerk Harrisburg Prothonotary's Office RE: Wilson v. Hirsh, et al No. 224 Harrisburg, 1995 C.P. Court Cumberland County Civil Dkt 1070-1994 This is to advise that the attached Order has been entered on the docket for the above-captioned matter. Pursuant to the foregoing Order, a certified copy of the Order along with the original record will be forwarded to the lower court in due course. PAW : pw Attachment(s) 1 c: Hon.- George E. Hoffer, Cumb. Co. Lawrence John Neary, Esq. Harvey Freedenberg, Esq. Prothonotary, Cumberland Co. (717)772-1294 • pR1G,~ Oa G~uR SUPER ~ 1995 Q,PR ~-,ri~~~Sg~FtG • IN THE SUPERIOR COURT OF PENNSYLVANIA FRANK WII,SON, Appellant : ~• N0.00224 HBG 95 LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR. and COMMERCE BANK~HARRISBURG, Appellees : APPLICATION FOR RELIEF OF C MMERCF. BANK IN THE NATURE OFA MOTION TO QUASHAPPE I A INTE LOCUTORY AND NOW, comes Appellee, Commerce Bank/Harrisburg ("Commerce Bank"), by its attorneys, METTE, EVANS & WOODSIDE, and hereby files the following Application for Relief in the Nature of a Motion to Quash Appeal: 1. This Court has authority to entertain this Motion to Quash Appeal as Interlocutory pursuant to Pa. R.A.P. 1972 (7). ~2~ U n LJ 2. The appeal in this proceeding was taken from an Order entered February 8, 1995 by the Honorable George E. Hoffer of the Court of Common Pleas of Cumberland County, which granted Defendant Commerce Bank's Preliminary Objection in the nature of a demurrer. 3. Plaintiff, Frank Wilson, filed a Complaint in the Court of Common Pleas of Cumberland County on or about November 12, 1993 against Commerce Bank and co-Defendant Weinstein-Hirsh Appraisal Group. 4. On or about March 24, 1994, Commerce Bank filed its Preliminary Objection in the nature of a demurrer seeking to dismiss Plaintiff s claim against it. 5. Plaintiff Wilson thereafter filed an Amended Complaint which was unchanged as to the allegations against Commerce Bank but which substituted Laurence A. Hirsh and Charles F. Schubert, Jr., individually, as Defendants in place of the Weinstein Hirsh Appraisal Group. 6. Because the allegations in the Amended Complaint against Commerce Bank were unchanged, counsel for Plaintiff and for Commerce Bank agreed that Commerce Bank's Preliminary Objection in the nature of a demurrer could remain pending and be decided with respect to the Amended Complaint. ~a,5 • 7. Co-Defendants Hirsh and Shubert did not file Preliminary Objections to the Amended Complaint, and instead filed their Answer and New Matter to the Complaint. 8. The Order of Court entered February 8, 1995 from which this appeal is taken disposed of Plaintiff s case against Commerce Bank only; Plaintiffls alleged causes of action against Defendants Schubert and Hirsh were not affected. 9. The trial court's Order dismissing Plaintiff's claim against Commerce Bank did not contain an express determination pursuant to Pa. RA.P. 341(c) that an immediate appeal would facilitate resolution of the entire case. 10. The trial Court's Order dismissing Plaintiff s claim against Commerce Bank was never amended to include a determination of finality. 11. Pursuant to Pa. R.A.P. 341(c), the trial Court's Order dismissing the claim against Commerce Bank, which did not dispose of Plaintiff's claim against co-Defendant Schubert and Hirsh, is not a final Order subject to appeal. 12. The Notice of Appeal in the instant action should be quashed since it seeks to appeal from an interlocutory Order. acs • WHEREFORE, Commerce Bank prays this Honorable Court dismiss the above- captioned appeal for the reason that the Order appealed from is interlocutory and unappealable. METTE, EVANS & WOODSIDE Daniel L. Sullivan, Esquire Sup. Ct. I.D. No. 34548 3401 North Front Street P.O: Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Appellee Commerce Bank DATED: ~' l q ~ s' (21 ~~OF OF 4F]? rnrn - ~~ • ~ L AND NOW, this day of April, 1995, I, DANIEL L. SULL IVAN, ESQUIRE, hereby certify that I am serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pa R.A.P. 121, b de Y positing a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with first-class ost prepaid, as follows: P age Lawrence J. Neary, Esquire (717) 238-4776 108-112 Walnut Street P.O. Box 963 Harrisburg, PA 17108 (Counsel for Frank Wilson) Harvey Freedenburg, Esquire (717) 2375267 MCNEES, WAI-LACE & NURICK 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (Counsel for Laurence A. Hirsh and Charles F. Schubert, Jr.) METTE, EVANS & WOOD9IDE ~_ Daniel L. Sullivan, Esquire Sup. Ct. I. D. #34548 3401 North Front Street P. O. Box 5950 Harrisburg, pA 1 71 1 0-0950 (717) 232-5000 Attorneys for Appellee Commerce Bank 29235 1 •~ • CUI'Y ORIGINAL FILED IN SUPERIOR COt1RT APR 2 01995 IN THE SUPERIOR COURT OF PENNSYLVANIA MIDDLE DISTRICT FRANK WILSON, Appellant v. LUARENCE A. HIRSH, and CHARLES F. SCHUBERT, JR., and COMMERCE BANK/HARRISBURG, Appellees No. 00224 HBG 95 HARRISBURG ANSWER TO APPLICATION FOR RELIEF OF COMMERCE BANK /N THE NATURE OF A MOTION TO QUASH APPEAL AS INTERLOCUTORY AND NOW comes the Appellant, Frank Wilson, by and through his attorney, Lawrence J. Neary, Esquire, and respectfully represents as follows: 1. Admitted. By way of further answer, by Order of the Superior Court, Appellant's Brief and Reproduced Record are due on or before May 30, 1995, by Order of this Court dated April 19, 1995. 2 - 8. Paragraphs 2 through 8 are admitted. lad 9. Admitted. By way of further answer, Count III of the Amended Complaint against Commerce Bank, while arising out of the same underlying transaction, i.e. the construction of an office building, nevertheless, is independent of and involves different allegations of negligence than those alleged in Counts I and II against the other parties. Joint and several liability is not alleged against all of the Defendants. Furthermore, the lower Court did not address the issue of whether an immediate appeal would facilitate resolution of the entire case. 10. Admitted. By way of further answer, Appellant's counsel, by focusing on the finality of the granting of Appellee's Preliminary Objections, failed to consider that the matter would, in some way, be deemed interlocutory when the action against Commerce Bank was dismissed. 11. Denied. Paragraph 11 states a conclusion of law to which no responsive pleading if required. By way of further answer, Appellant believes that the Order was final as to Count III against Commerce Bank, and may be considered a final Order for which this Court would properly have jurisdiction on appeal. 12. Denied. Appellant requests an opportunity to petition the lower Court for determination of the finality of the Order, or in the alternative, Appellant requests that the matter be considered and disposed of by the Superior Court. 2 1~ T .4 WHEREFORE, Appellant requests that the Application for Relief of Commerce Bank in the Nature of a Motion to Quash Appeal as Interlocutory be denied, or in the alternative, that the Appellant be provided an opportunity to present the matter to the lower Court for resolution. Respectfully Submitted, CONNELLY, REID & SPADE Date: '~ ~~~' ~ jJ By: Lawresncq/J. Nea~, squire Attorr~e for Appe a t 108 - 112 Walnut _ reet P. O. Box 963 ` Harrisburg PA 17108 (717) 238-4776 (717) 238-4793 - Telecopier Pa. I.D. No. 25827 3 I31 CERTIFICATE OF SERVICE I, Lawrence J. Neary, Esquire, of Connelly, Reid, & Spade, attorneys for Appellant hereby certify that I have on the date shown below, served a copy of the foregoing Answer to Application for Relief of Commerce Bank to the person(s) and in the manner indicated below: UNITED STATE FIRST CLASS MAIL, POSTAGE PREPAID Daniel L. Sullivan, Esquire METTE, EVANS & WOODSIDE 3401 N. Front Street P. O. Box 5950 Harrisburg PA 17110-0950 Attorney for Commerce Bank Harvey Freedenburg, Esquire MCNEES, WALLACE & NURICK 100 Pine Street P. O. Box 1166 Harrisburg PA 17108-1166 Attorney for Laurence A. Hirsh and Charles F. Schubert, Jr. Date: By: ~" ~o ~ 5' 13a CONNELLY, REID & SPADE '~ -~5- 95 o a • J UL 25 1995 FRANK WII•SON : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v : No. 1070 CIVIL 1994 LAURENCE A. HIRSH and :CIVIL ACTION -LAW CHARLES F. SCHUBERT, JR., and COMMERCE BANK/HARRISBURG, . Defendants :JURY TRIAL DEMANDED RULE TO SHOW CAUSE ZS AND NOW this day of July, 1995, upon consideration of the Motion for Approval of Court for the Discontinuance of Count III of the Amended Complaint, a Rule is hereby entered upon the Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr. , and Commerce Bank/Harrisburg, to show cause why Count III of the Amended Complaint against Commerce Bank/Harrisburg should not be discontinued, with prejudice. RULE RETURNABLE 7 DAYS AFTER SERVICE. BY THE COURT: `., t_. , ,::~, -, _ ~!~ ~;;t ~L m ~ "s+^ ~,l/il FRANK WILSON Plaintiff v. LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., and COMMERCE BANK/HARRISBURG, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 1070 CIiVII. 1994 CIVIL ACTION -LAW JURY TRIAL DEMANDED MOTION FOR APPROVAL OF COURT FOR DISCONTINUANCE OF COUNT III OF THE AMENDED COMPLAINT AND NOW comes the Plaintiff, Frank Wilson, by and through his attorney, Lawrence J. Neary, Esquire, and respectfully represents as follows: 1. Plaintiff filed a Complaint in the above action on March 4, 1994, after which, pursuant to approval of Court, an Amended Complaint was filed on or about May 17, 1994, both of which contained Count III against Defendant, Commerce Bank/Harrisburg. 2. Thereafter, Commerce Bank filed Preliminary Objections which were granted by Order of Court dated February 8, 1995 to the above term and number, dismissing Count III of the Amended Complaint. 3. Thereafter, Plaintiff filed an appeal to the Superior Court, which was dismissed on the basis that the trial Court Order of February 8, 1995 was not final and appealable. A copy of said Order is attached hereto and marked as Exhibit A. ~1- • • 4. Counts I and II of the Amended Complaint are against Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr. , and there is presently pending a Motion for Judgment on the Pleadings filed by Defendants Hirsh and Schubert, which is set for argument before the Court. While said Counts are related factually to the Count III against Commerce Bank, there is no claim of joint or several liability and there are no crossclaims or joinders as additional Defendants or claims of liability over between Defendants Hirsh and Schubert and Defendant Commerce Bank or between the Plaintiff and Commerce Bank. 5. Plaintiff desires to discontinue the action, with prejudice, against Commerce Bank contained in Count III of the Amended Complaint and said discontinuance requires consent of all parties or leave of Court pursuant to Pa.R.C.P. 229. 6. Any discontinuance against Defendant, Commerce Bank, shall not effect Counts I and II of the Amended Complaint against Defendants Hirsh and Schubert, which shall remain pending before the Court. 7. Defendants, Hirsh and Schubert's counsel, who has previously been advised of Plaintiff s intention to discontinue Count III of the Amended Complaint, has no objection to a shortened period, i.e. 7 days, within which to respond to a Rule to Show Cause. S. Defendant, Commerce Bank, has no objection to the discontinuance of the Count III against Commerce Bank. 2 135 • WHEREFORE, Plaintiff requests that the Court enter a Rule to Show Cause why the discontinuance of Count III of the Complaint against Commerce Bank, with prejudice, should not be granted. Respectfully Submitted, CONNELLY, REID & SPADE Date: ~ s ~~ By: ~ -~l.R.i La en 7. Neary squire Att y for Plain ff 108 - 112 Walnut Street P. O. Box 963 Harrisburg PA 17108 (717) 238-4776 (717) 238-4793 - Telecopier Pa. I.D. No. 25827 3 i 3(a •ALL-STATE LEGAL SUPPLY CO.. 1-800-Y22-0.510 ED11 RECYCLED ~~~ a ' ~ ,'~ , FRANK WILSON, Appellant v. LAURENCE A. HIRSH AND CHARLES F. SCHUBERT, JR., AND COMMERCE BANK/HARRISBURG IN THE SUPERIOR COURT OF • PENNSYLVANIA No. 00224 Harrisburg 1995 (C.P. Cumberland County No. 1070 Civil 1994) O R D E R The trial court order of February 8, 1995, is not final and appealable because it does not dismiss all claims or parties, is not defined as final by statute nor does it include the "express determination that an immediate appeal would facilitate resolution of the entire case." Pa.R.A.P. 341(b) Therefore, the Court grants the motion to quash the appeal. The appellant's request for an opportunity to petition the lower Court for determination of the finality of the order is denied. PER CURIAM DATE: _ Mav 19, 1995 ., i ~ ~ ~ r i R CERTIFICATE OF SERVICE I, Lawrence J. Neary, Esquire, of Connelly, Reid, & Spade, attorneys for Plaintiff hereby certify that I have on the date shown below, served a copy of the foregoing Motion for Approval of Court for Discontinuance of Count III of the Amended Complaint to the person(s) and in the manner indicated below: VIA HAND DELIVERY: Daniel L. Sullivan, Esquire Michael R. Kelley, Esquire METTE, EVANS & WOODSIDE MCNEES, WALLACE & NURICK 3401 N. Front Street 100 Pine Street P. O. Box 5950 P. O. Box 1166 Harrisburg PA 17110-0950 Harrisburg PA 17108-1166 CONNELLY, REID & SPADE Date: 7/25/95 gy u .~ ~;,:; c c '" _.~ tv ~~ X~~ ~_ '~ ~~ . _, ~ ~ ~a (1f ~-~ ~-~~5 S PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) - TO THE PROTHONOTARY/OF CUMBERLAND COUNTY: Please list the within matter for the next: 0 Pre-Trial Argument Court ^ Argument Court CAPTION OF CASE (entire caption must be stated in full) FRANK WILSON, vs. (Plaintiff) LAURENCE A. HIRSH, and 6HARLES~ F. SCHUBERT, JR., and COMMERCE BANK/HARRISBURG, (Defendant) vs. S7 -- ~~ __ ~ . ". `~ _ N ;: v... ~~ ,.. ,. ~N r .~ 2 ~ - , ~ r, r~ ~ ': -~ .~ ~~y 1©Z e No. ~'~ Civil ACTION -LAW 19 94 1. State matter to be argued (i. e., plaintiff s motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Motion for Judgment on the Pleadings 2. Identify counsel who will argue case: (a) for plaintiff: Lawrence J. Neary, Esquire (b) for defendant: Hirsh and Schubert: Harvey Freedenberg, Esquire and Michael R. Kelley, Esquire. For Defendant, Commerce Bank, Daniel L. Sullivan, Esquire. 3. I will notify all parties in writing within two days that this case has been listed for argument. ( or for Pl ntiff ) ~i ~ rence J Neary, Esqui Dated: I ~ `~ 7 ~ ti FRANK WILSON Plaintiff v. LAURENCE A. HIILSH and CHARLES F. SCHUBERT, JR., and CONIlVIERCE BANK/HARRISBURG, Defendants ~5-~-~5 IN THE COURT OF COMMON PLEAS C[JMBERLAND COUNTY, PENNSYLVANIA No. 1070 CIVIL 1994 CIVIL ACTION -LAW JURY TRIAL DEMANDED STIPULATION AND NOW comes the Plaintiff, Frank Wilson, by and through his attorney, Lawrence J. Newry, Esquire, and Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr., by and through their attorney, Harvey Freedenberg, Esquire, who stipulate and agree as follows: WHEREAS, Plaintiff has filed a Complaint and thereafter an Amended Complaint, to which Defendants have filed an Answer and New Matter; WHEREAS, the pleadings have been concluded and the parties have proceeded with discovery in the form of Interrogatories, Request for Production of Documents and the deposition of Laurence A. Hirsh; WHEREAS, Defendants have recently ~ filed a Motion for Judgment on the Pleadings, which is presently pending before the Court; WHEREAS, Plaintiff desires to further amend the Amended Complaint and present additional factual allegations which may have a bearing on the legal issues raised in the Motion for Judgment on the Pleadings; iii • • WHEREAS, the parties agree that the entry of this Stipulation shall not delay the argument scheduled on the Motion for Judgment on the Pleadings; WHEREAS, the parties have agreed that Defendant may file an answer to the additional allegations set forth below and thereafter file a supplemental response brief, if necessary, all of which the parties agree will be before the Court at argument. NOW THEREFORE, the parties, by and through their counsel, stipulate and agree as follows: 1 • The allegations set forth below shall be added to the Amended Complaint and be incorporated by reference in Counts I and II of said Complaint. The specific allegations are as follows: 22(a) The premises known as 3507 Market Street, Camp Hill, while originally under contract between Wilson, Garr & McKee, a partnership consisting of Wilson and Garn, to the Adams -Molinari Group when the appraisal was requested, was later acquired by the partnership of Wilson, Garn & McKee, then consisting of Frank Wilson and George J. Adams, with the construction of the previously proposed structure to be built by Investor's Development Group, Inc., a construction company owned by partner, George J. Adams, such that the structure of the transaction changed prior to settlement on the construction financing closing on March 29, 1989. 2 .. ~ ~ (b) The appraisal performed by Defendants Hirsh and Schubert was paid for, in the amount of $3,045.00, from funds from the construction loan closing that took place on March 29, 1989 involving the partnership of Wilson, Gam & McKee, consisting of partners Frank Wilson and George J. Adams. Dated: ~. r' J e y eedenbe quire Attome for Defe Laurence A. Hirsh and Charles F. Schubert, Jr. Dated: ~ 7 f ~~ ence J. eary, Esquire ttomey Plaintiff ~ Frank Wilson 3 r .~ ~, c _~ ~ ~r' ~ ~ '`' Q, <.. -r~ GJI s-` - N -~ z~ - ~ -~ c.c~ FRANK WILSON Plaintiff v. LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., and COMMERCE BANK/HARRISBURG, Defendants cS1`' ~~ -`~t5 + • AUG 1 ~ 1995 B~' IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No. 1070 CIVIL 1994 CIVIL ACTION -LAW JURY TRIAL DEMANDED ORDER OF COURT AND NOW this l day of August, 1995, upon consideration of Plaintiff s Motion to Make Rule Absolute, it is hereby ORDERED that Count III of the Amended Complaint against Commerce Bank/Hamsburg shall be marked discontinued, with prejudice. z,. ~Q ~ ~ "{ r CTt m T'~ ;;~: T" ~ C? ..~..• ~ y- t3 n .r ~p:X~ +~ x+~Qf~71 ~r p ~ .,.~ ~~ 4 ~~ BY THE COURT: ao ~ ~ i`. `~ - • FRANK WHSON Plaintiff v. LAURENCE A. HIRSH and CHARLES F. 5CHUBERT, JR., and COMMERCE BANK/HARRISBURG, Defendants • IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 1070 CIVIL 1994 CIVIL ACTION -LAW JURY TRIAL DEMANDED MOTION TO MAKE RULE ABSOLUTE AND NOW comes the Plaintiff, Frank Wilson, by and through his attorney, Lawrence J. Neary, Esquire, and respectfully represents as follows: 1. The Plaintiff filed, on July 25, 1995, a Motion for Approval of Court for Discontinuance of Count III of the Amended Complaint against Commerce Bank/Harrisburg. 2. Pursuant to said Motion, a Rule to Show Cause was entered on July 25, 1995 and said Rule was returnable seven (7) days after service.. A copy of said Rule is attached hereto and marked Exhibit "A". 3. Said Motion and Rule were served upon counsel for all parties on July 25, 1995 pursuant to the Certificate of Service, a copy of which is attached hereto and marked as Exhibit "B". 4. Thereafter, by letter dated July 31, 1995, the attorney for Defendants, Hirsh and Schubert, indicated that he did not oppose the Motion. A copy of said correspondence is attached hereto and marked Exhibit "C". 5. No response to said Rule was filed on behalf of the other Defendant, Commerce Bank, which is the party against whom the action was being discontinued. • 6. The time within which to respond to the Rule has expired and no opposition has been filed thereto. WHEREFORE, Plaintiff requests that the Rule be made Absolute thereby discontinuing Count III of the Amended Complaint against Commerce Bank. CONNELLY, REID & SPADE Dated: ~ ~~ ~~ By; L~yK'ence J. ary, Esqui; Attorney fo laintiff 108-112 Walnut Street P.O. Box 963 Harrisburg, PA 17108 (717) 238-4776 (717) 238-4793 Telecopier Pa. I.D. No. 25827 Wce • FRANK WILSON Plaintiff v. LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., and CONIlVIERCE BANK/HARRISBURG, Defendants • IN THE COURT OF COMMON PLEAS CUMBERLAi~1D COUNTY, PENNSYLVANIA No. 1070 CIVIL 1994 CIVIL ACTION -LAW JURY TRIAL DEMANDED ~'ERTIFICATE OF SERVICE I, Lawrence J. Neary, Esquire, of Connelly, Reid, & Spade, attorneys for Plaintiff, hereby certify that I have on the date shown below, served a copy of the foregoing Motion to Make Rule Absolute to the person(s) and in the manner indicated below: FIRST CLASS MAIL. POSTAGE PAID Daniel L. Sullivan, Esquire METTE, EVANS & WOODSIDE 3401 N. Front Street P. O. Box 5950 Harrisburg PA 17110-0950 Date: ~' ~' Michael R. Kelley, Esquire MCNEES, WALLACE & NURICK 100 Pine Street P. O. Box 1166 Harrisburg PA 17108-1166 CONNELLY, REID & SPADE L ice J. ,Esquire Attorney for intiff 108 - 112 W nut Street P. O. Box 963 Harrisburg PA 17108 (717) 238-4776 (717) 238-4793 - Telecopier Pa. I.D. No. 25827 By: ~r..r ~+-Q-~- 14'~ ALl-STATE®LEGAL 800-222-0510 EDIT RECYCLED [T7 tT0 FRANK WILSON ` Plaintiff v. LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., and COMMERCE BANK/HARRISBURG, Defendants JUL ~5 i995 ~~' IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 1070 CIVIL 1994 CIVIL ACTION -LAW JURY TRIAL DEMANDED RULE TO SHOW CAUSE AND NOW this ~ day of July, 1995, upon consideration of the Motion for A '- rov pp al of Court for the Discontinuance of Count III of the Amended Complaint, a Rule is hereby entered upon the Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr., and Commerce Bank/Harrisburg, to show cause why Count III of the Amended Complaint against Commerce Bank/Harrisburg should not be discontinued, with prejudice. RULE RETURNABLE 7 DAYS AFTER SERVICE. ~ FROM ~~Ot~ fn ~~~r~ wlrsre~,1 hers unto set t~ hand and i__h.,~~se~~al ~~ s-ai C ~~a~~C~~riisl~. Pa ~- T~is\~~~da~ ~ox~. 15~ BY THE COURT: '. J. ALL-STATE° LFGAL 800-222-0510 ED11 RECYCLED , ~°'1l l FRANK WILSON Plaintiff v. LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., and COMMERCE BANK/HARRISBURG, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 1070 CIVIL 1994 CIVIL ACTION -LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Lawrence J. Neary, Esquire, of Connelly, Reid, & Spade, attorneys for Plaintiff hereby certify that I have on the date shown below, served a copy of the foregoing Motion for Approval of Court for Discontinuance of Count III of the Amended Complaint and Rule to Show Cause to the person(s) and in the manner indicated below: VIA HAND DELIVERY Daniel L. Sullivan, Esquire METTE, EVANS & WOODSIDE 3401 N. Front Street P. O. Box 5950 Harrisburg PA 17110-0950 :~--~ Date: ~~ j ; .~- Michael R. Kelley, Esquire MCNEES, WALLACE & NURICK 100 Pine Street P. O. Box 1166 Harrisburg PA 17108-1166 CONNELLY, REID & SPADE By: .(..~-~ ~~ La re e J. Ne Esquu A ey for Pl iff 108 - 112 Wal Street P. O. Box 963 Harrisburg PA 17108 (717) 238-4776 (717) 238-4793 - Telecopier Pa. I.D. No. 25827 N1~EES, ~l1/ALLACE & NURIc,.K • ' ATTORNEYS AT LAW 100 PINE STREET P. O. BOX 1166 HARRISBURG, PA. 17108-1166 TELEPHONE(717)232'8000 F,e,X (717) 237.5300 MICHAEL R. KELLEY i DIRECT DIAL• ~7I7~ 237-3322 July 31 , 1 995 Thomas E. Cheffins, Court Administrator Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: Frank Wilson v. Laurence A. Hirsh and Charles F. Schubert, Jr., and Commerce Bank/Harrisburg C.P. Cumberland County No. 1070 Civil 1994 Dear Mr. Cheffins: Please be advised that Defendant Laurence A. Hirsh and Charles ;F. Schubert, Jr, do not oppose the Motion for Approval of Court for Discontinuance of Count III of the Amended Complaint filed by Plaintiff on or about July 25, 1995. <~ I~ Sincerely, McNEES, WALrACE & NURICK 1 ~j ^ i By ~/ VI ~. Michael R. Kelley MRK/mrs cc: Lawrence J. Neary, Esquire V Daniel L. Sullivan, Esquire )53 ~~ ~: ..max-. rn ~'~ m ~^ CJ's rn ~~-~ r N C" µ 7 i~~f C ~" `J ~ f-~`-i~ r0=`*ti H sr~~,~ w i.c~~tn ~~~~ y. ~ ~ ~~, . x_95 i RANK WILSON, : IN THE COURT OF COM PEN SYLVANIA F :CUMBERLAND COUNTY, Plaintiff V. : NO. 94-1070 CIVIL TERM : CIVIL ACTION LAW LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., and COMMERCE BANK/HARRISBURG, Defendants Before HOPPER J. and OLER J. ORDER OF COURT AND NOW, October 2,1995, after careful consideration of the parties' briefs and oral arguments, we note that the Pennsylvania Superior Court has adopted the provisions of Section 552 of the Restatement (Second) of Torts. See, Mill-Mar Inc. v. Statham, 278 Pa. Super. 296, 420 A.2d 548 (1980). Examining the provisions of this section in light of the record before this Court, it seems that factual issues exist with regard to the intent of the defendant in supplying the appraisal to Commerce Bank. With regard to the plaintiff's third party beneficiary claim, we note that the record lacks information relating to the intent of the parties to the appraisal agreement. As the record is not sufficiently developed in this regard, the defendant's motion for judgment on the pleadings is denied. -5j r ~ ~ • Lawrence J. Neary, Esquire Connelly, Reid & Spade PO Box 963 Harrisburg, PA 17108 Harvey Freedenberg, Esquire McNees, Wallace & Nurick 100 Pine Street PO Box 1166 Harrisburg, PA 17108 uA., / o ~ ~ ~ R S, C~~ ~, ~ . J. ~ ~,, r `> • ;~3~t1GtiJf~ : ~ _ ,ir .,,.~7 ~ ` 1~~, ~a of Z Z o ~J 56~ ~~ 155 By the Court, PR~ECIPF FOR LISTT~'G C.~5E FOR TRi~L (dust zwritten and submitted in duplic TO THE PROTHONOT.aRY, OF CL"~1BERL.-3:tiD COC`iTY P'.:ase !ist the foilowin; case: iC`.~zc~c ~,ne} ( XX ) ;or JURY trial at t'.;z nest :er:a ~f .:v~1 cou::. ( 1 for trial without s jury. C.aPTiON ~7F C~Sc i ar.tire cation :,,ust be stated in full) Frank Wilson •: s. (P! ain of Laurence A. Hirsh and Charles F. Schubert, Jr. (Defendant) VS. ~. (check one) ( ) .~ssumcsit (XX) Trespass ( ) Trespass (Motor ~'ehie'.e) !-a5-~~ ( ) - (other) The trial list will be called on Feb. 20 and 'IYials commence on March 18th Pretrials will be held on Feb 28 (Briefs are due 5 days be=ore pre- trials.) (The party listing this case for tria] shall provide forthwith a copy of the praecipe to all counsel, pursuant to focal Rule 214-1.) \0 1070 Cavil 1 y94 -ase ;or the ?arty ~~•ha ;ilia axis ?raecl?e: lntll:.3te th°. 1[iOCne;i 1YC10 tti•la ::}' Lawrence J. Neary Indicate trial counsel for other oar ties ii ivzotvn: Harvey Freedenberg, Michael R. Kelley TI115 ~a5e IS fe3dY IOf t:aal. ~ i2% / _ A 5-sred: ~awrence J!' Neary Print tiame: 'Attorney or ai ~Sw ~-. c' ~ ' .'s ~•> c> . ; ~ i µ_~_: _ ~~: _ C^^; ~ ~_ ~ _ _ ~ J i -= ° C-? ~~ - a ~. ~ ~ -- -rt ~~~; 'C7 ~:~. r __ _'_` ~;, rr~ -~~ t~ cs; ~~ -~ 27. FRANK WILSON V LAURENCE A. HIRSH AND CHARLES F. SCHUBERT, JR. • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-1070 CIVIL TERM ORDER OF COURT AND NOW, FEBRUARY 20, 1996, at the request of defendant, the above- captioned matter is hereby continued from the MARCH 1996 trial term. Prothonotary is directed to relist for the May 1996 trial term. No further continuances will be granted. By the Court, --~ arold E. S eely, .J. Lawrence J. Neary, Esq. For the Plaintiff Michael R. Kelley, Esq. For the Defendant Court Administrator :br a - as ~~ -S~ ~, r'=- - ". -~1 ~~~.' : ~ . -t , . ~.._ `+~ ~J -r~ _ _.. y i7 1. i 3 -. - , ~ --[) • r 1 lJ 1 Hoffer FRANK WILSON, Plaintiff V. LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., Defendants . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 94-1070 CIVIL TERM A pretrial conference was held before the Honorable George E. Hoffer, Judge, on Wednesday, May 1, 1996. In this case, Lawrence J. Neary, Esquire, represents the plaintiff; and Harvey Freedenberg, Esquire, and Michael R. Kelley, Esquire, represent the defendants. At the time of the incident in question, defendants were full-time real estate appraisers. Plaintiff, along with various other parties, wished to construct an office building in Hampden Township. Plaintiff owned the ground underneath the proposed structure. Plaintiff went to Commerce Bank for a loan. Commerce Bank required an appraisal of the land and proposed building in order to determine the extent of their loan liability. Eventually, Commerce did loan to Plaintiff Wilson and other parties the sum of $635,000.00. After completion of the appraisal, the defendants returned an appraisal to the bank indicating that the property they examined 5-~0 -Q~ r~ s~ • 94-1070 Civil Term In Re: Pretrial Conference Page 2 could be valued at $925,000.00. The building was constructed and open for business by 1991. For various reasons, the building was never a financial success and eventually was sold. Plaintiff claims the appraisal given by defendants to the bank was overvalued by approximately $270,000.00; plaintiff claims defendants were negligent in preparing this appraisal, and plaintiff has an expert real estate appraiser to point out the various acts of negligence committed in this appraisal. Defendants contend that no obligation on their part ever arose toward Plaintiff Wilson and that defendants total obligation was to the bank and to no other party. We direct that the issue of duty be briefed by both counsel and submitted to the trial Judge. We also direct that a charge dealing with the negligence question, together with written Jury interrogatories, be prepared by each counsel. In regard to these documents, plaintiff's counsel shall submit these documents to the court by the close of business Friday, May 10, 1996; defense counsel shall respond with like documents by the close of business Friday, May 17, 1996. This is a Jury trial estimated to take a day and 15Q ~. 94-1070 Civil Term In Re: Pretrial Conference Page 3 a half to two days with four challenges apiece. We also direct plaintiff's counsel, as a part of this document package, to outline his damages and provide a charge on the measure of damages; defense counsel shall also respond to this. Lawrence J. Neary, Esquire P.O. Box 963 Harrisburg, Pa. 17108-0963 For the Plaintiff Harvey Freedenberg, Esquire Michael R. Kelley, Esquire P . 0 . Box 1166 -- Harrisburg, Pa. 17108-1166 ~~ ~' For the Defendants ~; ~~ Prothonotary ~ .LLi~. Court Administrator .~ ~~ -, ., , mtf = ~~ -' - ~; -- ~ coo By the Court, 5- ~ y. - ~r`,,p FRANK WILSON, v. ,I 11 u IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA NO. 1070 CIVIL 1994 LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED VERDICT SLIP Ouestion 1• Did Defendants supply the appraisal report for the guidance of Plaintiff in his business transactions? YES NO If your answer to Question No. 1 is "No", return to the Courtroom and do not answer any further questions. If your answer to Question No. 1 is "Yes", go on to Question No. 2. Ouestion 2• Did the Defendants supply false information in their appraisal? YES NO If your answer to Question No. 2 is "No", return to the Courtroom and do not answer any further questions. If your answer to Question No. 2 is "Yes", go on to Question No. 3. Jcv! ~ ~ Ouestion 3• Were Defendants negligent in obtaining or communicating the information contained in the appraisal report? YES NO If your answer to Question No. 3 is "No", return to the Courtroom and do not answer any further questions. If your answer to Question No. 3 is "Yes", go on to Question No. 4. Ouestion 4• Did Plaintiff justifiably rely upon the information contained in the appraisal report? YES NO If your answer to Question No. 4 is "No", return to the Courtroom and do not answer any further questions. If your answer to Question No. 4 is "Yes", go on to Question No. 5. Question 5: Was the Defendants' negligence a substantial factor in bringing about the Plaintiff's loss? YES NO - 2 - rya If your answer to Question No. 5 is "No", the Plaintiff cannot recover and you should not answer any further questions and you should return to the Courtroom. If your answer to Question No. 5 is "Yes", go on to Question No. 6. Ouestion 6• Was Plaintiff contributorily negligent? YES NO If your answer to Question No. 6 is "No", proceed to Question No. 9. If your answer is "Yes", proceed to Question No. 7. Ouestion 7• Was the Plaintiff's contributory negligence a substantial factor in causing his loss? YES NO If your answer to Question No. 7 is "No", skip Question No. 8 and go to Question No. 9. If your answer is "Yes", proceed to Question No. 8. - 3 - ~~3 ~ ~ Ouestion 8• Taking the combined negligence that was a substantial factor in bringing about Plaintiff's loss as 100%, what percentage of causal negligence was attributable to the Defendants and what percentage was attributable to Plaintiff? Percentage of causal negligence attributable to Defendants? Percentage of causal negligence attributable to Plaintiff? PERCENTAGE TOTAL 100 If you have found the Plaintiff's causal negligence to be greater than 50%, then the Plaintiff cannot recover and you should not answer the next question and should return to the Courtroom. - 4 - i~~! A •~ • Question 9• What amount do you award to the Plaintiff, Frank Wilson, for his injuries? a. Difference in value between the value of what the Plaintiff received in the transaction and the value given for it: $ b. Other pecuniary loss suffered as a consequence of the Plaintiff's reliance on the appraisal: $ TOTAL $ Dated : s-~~ URY FOREPERSON - 5 - It~S J Hate: J ~- ,~ d ." l case ivo.` Civil 19 court Roan No. 3 ~~ t 1. ~ ~ ~1 1 ~ l ^ 1 ~ , .S 2. ~z_ I,~r;~ .S. ~Cc.s~~ Pa 4. ~!Z ~y 5. 6. ] ~ ~ ~eC~ne-~'~ m ' r r~ ~ ~- `J 9- ~ - Sind ~'a L ~ 13a_r~'~ lo. l~D - ~ ~ ~ l_ . ~-e a.~ 11. "~- ~ G~~ 12 . ~ e~r'c~ ~ ~~ ~' 1~ 1 ~ ~ -~ a 1 _ 13. ~ '~ - ~ ~(~C~ L ~. ~ -e~f~ 16. ~~ _ '~homas Yn ~ ~r~~-0..~ 17. 3 ~ _ ~CQ.m~e s ~ ~0.50l7 ~ ~J r 18. j~-- CMcu'!es ~ . ~ lac( bc,u~'n 20. - C~. t;~..(' ~ -~ (~ -eC1 S ~ ~ . 21. 22. 23. 24. )tvJ~ .• . ~' r t , - . • ~ c • ~ FRANK WILSON, v. Plaintiff LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 1070 CIVIL 1994 CIVIL ACTION -LAW JURY TRIAL DEMANDED PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF AND NOW comes the Plaintiff, Frank Wilson, by and through his attorney Lawrence J. Neary and files this Motion For Post-Trial Relief pursuant to Pa. R.C.P. 227.1(a)(1)(2) requesting the Court to enter a judgment in favor of the Plaintiff notwithstanding the verdict and to grant a new trial, and in support thereof avers the following: 1. A jury trial in the above captioned action concluded on May 22, 1996 when the jury returned a "no" answer to Question #1 on the Verdict Slip which asked: "Did Defendants supply the appraisal report for the guidance of Plaintiff in his business transactions?". This concluded the jury's deliberations. 2. Plaintiff had previously submitted requested Points For Charge #2, entitled "Duty of Care" which requested the Court to find, as a matter of law or to issue a binding instruction, "that the Plaintiff is a person to whom the law holds thaf the Defendants would owe a duty of care". t~.t~ 3. The Court read Plaintiffs requested Points For Charge #2 with the exception of the last sentence referred to in the previous paragraph and Plaintiffs exception thereto was noted on the record at the conclusion of the Court's charge to the jury. 4. Plaintiff submits that the Court was incorrect in refusing to grtant the binding instruction requested by the Plaintiff regarding the existence of the duty df care owed by the Defendant to the Plaintiff. 5. Plaintiff submits that the Court erred in submitting said iss~Ve, i.e. whether there .exists a duty of care between the parties, to the jury when said issue is a matter of law that is for the Court to decide and not for submission to the jury for resolution. 6. Plaintiff requests that all testimony and the charge of the Court be transcribed. WHEREFORE, Plaintiff Frank Wilson requests that the Court enter judgment in his favor notwithstanding the verdict on question #1 on the Verdict Slip and that a new trial be ordered. Respectfully submitted, CONNELLY REID & SPADE Date: S ~ ~ q By: La re ce J. ary, Esq~ii Attorney for P intiff 108-112 Waln t Street P.O. Box 963 Harrisburg, PA 17108 (717) 238-4776 (717) 238-4793 Pa. I.D. #25827 1 ~~~ CERTIFICATE OF SERVICE I, Lawrence J. Neary, Esquire, of Connelly, Reid, & Spade, attorneys for Plaintiff hereby certify that I have on the date shown below, served a copy of the foregoing Plaintiffs Motion For Post-Trial Relief to the person(s) and in the manner indicated below: UNITED STATES FIRST CLASS MAIL, POSTAGE PREPAID Cumberland County Court Administrator Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 George E. Hoffer, Judge Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Harvey Freedenberg, Esquire McNEES, WALLACE & NURICK 100 Pine Street Harrisburg, PA 17108 Date: ~ a Respectfully Submitted, CONNELLY, REID & SPADE By: Lawr a J. Ne , Esqu' Attorney for Plai tiff 108 - 112 Walnut Street P. O. Box 963 Harrisburg PA 17108 (717) 238-4776 (717) 238-4793 - Telecopier Pa. I.D. No. 25827 i~~ --, -,. -, i _., ., ' . ~ :=~; -~ c; • -. (,~ -`4 -Qty FRANK WILSON, Plaintiff V. LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-1070 CIVIL TERM CIVIL ACTION -LAW IN RE: PLAINTIFF'S POST TRIAL MOTIONS ORDER OF COURT AND NOW, June 3,1996, pursuant to Pennsylvania Rules of Civil Procedure 227.1(b)(2), 227.2 and 227.3, petitioner's request for a trial transcript at this time is granted. Petitioner shall file a brief with this Judge in support of all issues raised in the post-trial motion not later than thirty days from receipt of the transcript. Respondent shall file a reply brief with this Judge not later than twenty- one days from receipt of plaintiffs brief. Argument on the issues raised in the post-trial motions, unless waived, shall be held at a time to be later fixed. Lawrence J. Neary, Esquire 108-112 Walnut Street PO Box 963 Harrisburg, PA 17108 _ ~ ~/.~~~~ Harvey Freedenberg, Esgwre McNees, Wallace & Nurick 100 Pine Street Harrisburg, PA 17108 ~~~ ~~ ;E rya ~ ~1~~ J. 1 taq By the Court, .. ~~ 1 ~'L fl~;;i ...fit ~~ ,~ .~. _, ~'~~ R . "' ~. .. ~:.'' ~1C +M. ~ a ~~. _: _1~. ,~~ ~ ~~ CERTIFICATE AND TRANSMITTAL OF RECORD UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (c To the Prothonotary of the Appellate Court to which the within matter has been appealed: SUPERIOR OOURT OF P~LVANIA THE UNDERSIGNED, Prothonotary of the Court of Common Pleas of C~ County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opensoandfexhibitsrt as required by PA R.A.P. 1925, the origroceedin s, if any, and the if any on file, the transcript omatterp g docket entries in the following Case No. 94-1070 Civil Term; No. 424 HBG. 1997 FRANK WILSON VS. WEINSTEIN-HIRSH APPRAISAL GROUP, AND COr~IIrIERCE BANK/HBG The documents comprising the record have been numbered from No. 1 to No. 579 and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identifie3 with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmuted to the appellate court is June 24th, 1997 (Sal of Court) prothonotary An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. RECORD RECEIVED: Date: (s.gnature & title; • ~ CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. -~-C~ ~~. Susan L. Rice Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. a e ~~5 n ~..~ ~ ~ -~~ `' 'T? ~.:~ n --_~ ~, __, ~. _ ;i ~--- ...._ - . ~ rn U>_ iX _) ~' '~' ,, ..3 ~ ` - ~ ' ' t~I i " -- ~ -. +D -< • • II-+-Q~ FRANK WILSON, IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 94-1070 CIVIL TERM CIVIL ACTION -LAW LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., and COMMERCE BANK/HARRISBURG, Defendants IN RE: ARGUMENT ON PLAINTIFF'S-POST TRIAL MOTIONS ORDER OF COURT AND NOW, October 31, 1996, the Court being in receipt of briefs from both plaintiff and defendant, argument is set for MONDAY, NOVEMBER 18, 1996, at 3:30 p.m. in Courtroom No. 3. It is understood that because Attorney Freedenberg will be in trial in Harrisburg, Michael R. Kelley, Esquire, will argue for the defendants. Lawrence J. Neary, Esquire Connelly, Reid & Spade PO Box 963 Harrisburg, PA 17108 Harvey Freedenberg, Esquire McNees, Wallace & Nurick 100 Pine Street PO Box 1166 Harrisburg, PA 171082 > ry" ~`~ c~p~:~ J. ~ ..~ f/- /- 94 s, ~, ~ _-~ ' -CT G - ~ ~ -,~ 7__ Ery.. w ~ -_F .~ :~ L ~., .~ ~~ -.~ ~ ~ ~~~ By the Court, FRANK WILSON, Plaintiff v. LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., Defendants ~{-8-47 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 1070 CIVIL 1994 CIVIL ACTION -LAW IN RE: PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF ORDER OF COURT AND NOW, April 8, 1997, after careful consideration, plaintiffs Motion for Post-Trial Relief is denied. By the Court, Lawrence J. Neary, Esquire 108-112 Walnut Street PO Box 963 Harrisburg, PA 17108 For the Plaintiff Harvey Freedenberg, Esquire 100 Pine Street PO Box 1166 Harrisburg, PA 17108 For the Defendant ~ . ~' J. y,~ tfiJ`,~~~1~A~I~IN?d ~.t.~,~ :~a ~,. ,_;.,. ~l~i ~C~S ~'~ ~ ,, J~CJ~~.~.V~rV~Vt`lrl~t,.i~u~'±-7:~;i .i. ~~ ~d~~V-V~ ti~ FRANK WILSON, Plaintiff v. LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., Defendants • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 1070 CIVIL 1994 CIVIL ACTION -LAW IN RE: PLAINTIFF'S MOTION FOR POST TRIAL RELIEF BEFORE HOPPER. J. OPINION HOPPER, J.: In this opinion we address plaintiffs Motion for Post-Trial Relief. Plaintiff Wilson brought suit against defendants Hirsh and Schubert, Jr. in the Cumberland County Court of Common Pleas. Wilson claimed that he used the defendants' negligent appraisal of a piece of property for guidance in determining whether to enter into a construction project. A jury trial was held in May of 1996 and a verdict was entered in favor of the defendants. Plaintiff then filed a Motion for Post-Trial Relief which this Court now denies. The relevant facts are as follows: Frank Wilson was a partner in the Wilson, Garn & McKee Partnership. (Notes of Testimony, hereinafter "N.T." 9.) In 1983, the partnership bought property on Market Street in Camp Hill. This property is the basis for the present dispute. (N.T. 7.) In 1988 Wilson bought out Garn and McKee, leaving himself as the sole remaining partner. (N.T. 9.) That same year ~5$ ~ • 1070 CIVIL 1994 Wilson listed the Market Street property with a realtor and later accepted an offer made by the partnership of Adams/Molinari. (N.T. 9-11.) In June 1988 George Adams requested the Weinstein-Hirsh Appraisal Group' to perform an appraisal of an office building which was to be constructed by the Adams/Molinari partnership on the land which it was to buy from Wilson. (N.T. 215.) This appraisal was done between June and October of 1988 and was then forwarded to Commerce Bank, per the request of George Adams, in order to help secure financing for the construction project. (N.T. 285.} The proposed ofifce building project of Adams/Molinari changed between February 1988 and March 1989, when Hampden Township determined that the original specifications would not conform to the zoning regulations. (N.T. 18, 47.) However, Hirsh was never given any information concerning the site changes, nor was it asked to perform a second appraisal after the site specifications were modified. (N.T.276.) In or around this same time, Wilson took the place of Molinari in the Adams/Molinari Partnership. (N.T.18.) In February 1989, Commerce Bank issued a Commitment Letter for the construction financing on the proposed office building. (N.T. 62.) On March 29, 1989, Commerce Bank and the Adams/Wilson 1 This partnership later dissolved and hereinafter will be referred to as "Hirsh." 2 ~~~q • • 1070 CIVIL 1994 partnership closed on a loan for $650,000. (N.T. 62.) Wilson never saw a copy of the completed appraisal done by Hirsh prior to the closing of the loan, although he did see a transmittal letter and summary of the appraisal. (N.T. 43-47.) Additionally, Wilson never had any contact with Hirsh concerning the appraisal. (N.T. 59.) Furthermore, Hirsh did not know Wilson personally nor did he know Wilson had taken the place of Molinari in the partnership. (N.T. 286.) Moreover, the appraisal did not contain any language suggesting the proposed office building was a good investment for anyone. (N.T. 64.) However, Wilson claimed he retied on this, appraisal in making •the decision to enter into the proposed office building project. (N.T. 64-65.) Plaintiff requested the following instruction for the jury in its Point for Charge No. 2: The Plaintiff, Frank Wilson, was not in privity with the Defendants, which means that he was not a party to the contract of employment with the Defendants. This, however, does not prevent him from maintaining an action under the legal principle just read to you (Restatement of Torts 2d Section 522) provided that the Plaintiff is considered a beneficiary for whose benefit the information is supplied and the information was intended to influence the Plaintiff in that transaction. It is not necessary that the Plaintiff be known to the Defendants as an individual when the information is supplied. It is enough that the maker of the representation intended to reach and influence either a 3 ~~ 1070 CIVIL 1994 particular person or persons, known to them, or a group or class of persons, distinct from the much larger class who might reasonably be expected to have access to the information. It is enough that the supplier gives the information for repetition to a certain group or class of persons and the Plaintiff provided to be one of them. Thus, the Court finds that the Plaintiff is a person to whom the law holds that the Defendants would owe a duty of care. The Court read the entire point to the jury with the exception of the last sentence. The first question then set forth on the verdict slip submitted to the jury was as follows: "Question No. 1: Did Defendants supply the appraisal report for the guidance of Plaintiff in his business transactions? Yes No X If your answer to Question No. 1 is "no" return to the Courtroom and do not answer any further questions. If your answer to Question No. 1 is yes, go on to Question No. 2." The structure for this question was taken from the Restatement Second of Torts Section 522 which states: One who, in the course of business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. 4 ~~ . .. y • i 1070 CIVIL 1994 ANALYSIS "[TJhe determination of whether an act...constitutes negligence...has always been particularly committed to determination by a jury. It is an issue that may be removed from consideration by a jury and decided as a matter of law only where the case is entirely free from doubt and there is no possibilty that a reasonable jury could find negligence." Bloom v. Du Bois Reoional Medical Center, 409 Pa. Super. 83, 99, 597 A.2d 671, 679-680 (1991). In this case, the main question of fact is whether the defendants supplied the appraisal report for "the guidance" of the plaintiff in his business transaction. Conflicting testimony was given at the trial concerning this issue. Hirsh did not personally know Wilson nor was Wilson a member of the partnership at the time of the appraisal. Additionally, the appraisal was done for the benefit of Commerce Bank. Furthermore, the appraisal was not revised when the project was modified due to zoning problems, nor was the defendant asked to re-appraise the modifications. Conversely, Wilson testified that he saw a summary appraisal prior to the loan closing and that he relied on this appraisal when making his decision to enter into the project. All of these issues are questions of fact which must be determined by the jury prior to any decisions involving possible liability by Hirsh to Wilson under Restatement Second of Torts Section 522. 5 ca1~' • 1070 CIVIL 1994 Moreover, "it comes within the province of the jury to determine the reasonableness of each party's actions and to reconcile conflicting statements." Seewaoen v. Vanderkluet, 338 Pa. Super. 534, 540, 488 A.2d 21, 24 (1985). Therefore, it was up to the jury to reconcile the conflicting testimony of the parties. For these reasons this Court finds that the decision as to whether Hirsh supplied the appraisal for the guidance of Wilson was a question of fact which had to be determined by the jury. 6 C~1'7 ~. .7 FRANK WILSON, Plaintiff v. LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., Defendants • -~ ~-~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 1070 CIVIL 1994 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF JUDGMENT TO: PROTHONOTARY, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA: Please enter judgment on the jury verdict rendered on May 22, 1996. April // 1997 McNEES, WALLACE & NURICK B ~ arv Fr den rg tto ey o. 23152 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5267 Attorneys for Defendants 1~ • • CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing Answer with New Matter was served by first-class mail, postage prepaid, upon the following: Lawrence J. Neary, Esquire Connelly, Reid, & Spade P.O. Box 963 Harrisburg, PA 17108 April /~ 1997 endants Laurence A. Hirsh and Charles F. Schubert, Jr. vey eed er Of Cou sel for f 5~~ ~~ ~~ ~ o ~~ c- Y~l.~ ' -d r i 6._ ( j w ,, ~~ 1 y_ `~ r~~ `` 1 -~: COURT OF COMMON PLEAS OF CUMBERLAND COUNTY FRANK WILSON, DOCKET NO. 1070 CIVIL 1994 Plaintiff ~~ ! ~. Z~ 1~B 6. ~ J4'] v. LAURENCE A. HIRSH AND CIVIL ACTION -LAW CHARLES F. SCHUBERT, JR. Defendants NOTICE OF APPEAL NOTICE IS HEREBY GIVEN that Frank Wilson, Plaintiff, above named, hereby appeals to the Superior Court of Pennsylvania from the order entered in this matter on the 8th day of April, 1997, denying Plaintiffs Motion for Post Trial Relief. This order has been entered in the docket as evidenced by the attached copy of the docket entry. The trial transcript has been prepared and filed in the docket. Respectfully Submitted, CONNELLY, REID & SPADE Date: Q?s 9 7 By: r~-~- wr nce J. a ry, Esquire A rney for I mtiff 108 - 112 Walnut Street P. O. Box 963 Harrisburg PA 17108 (717) 238-4776 (717) 238-4793 - Telecopier Pa. I.D. No. 25827 • • CERTIFICATE OF SERVICE I, Lawrence J. Neary, Esquire, of Connelly, Reid, & Spade, attorneys for the Plaintiff, Frank Wilson, hereby certify that I have on the date shown below, served a copy of the foregoing Notice of Appeal to the persons and in the manner indicated below: UNITED STATES FIRST CLASS MAIL, POSTAGE PREPAID: Harvey Freedenberg, Esquire McNees, Wallace & Nurick 100 Pine Street PO Box 1166 Harrisburg PA 17108 BY HAND DELIVERY: The Honorable George E. Hoffer Cumberland County Courthouse 1 Courthouse Square Carlisle PA 17013 Cumberland County Court Administrator Cumberland County Courthouse 1 Courthouse Square Carlisle PA 17103 Official Court Reporter Cumberland County Courthouse 1 Courthouse Square Carlisle PA 17013 Date: ~ o? 8' 9 7 Respectfully Submitted, CONNELLY.aREID & SP6r9E By: !~~ ence J. ary, Esquire orney for laintiff 108 - 112 Walnut Street P. O. Box 963 Harrisburg PA 17108 (717) 238-4776 (717) 238-4793 - Telecopier Pa. I.D. No. 25827111 yz~ -' PY~5~10 Cumber nd County Prothonotary's ice Page vil Case Inqquiry 1994-01070 WILSON FRANK ( .WEINSTEIN-HIRSH APPRAISAR Reference No..: ~ Filed........: 3/04/1994 Case Ty e..... COMPLAINT Time. ... 15.04 Judgmen~..... i 00 Execution~Date 0/00/0000 Judge Assigned: HOFFER GEORGE E Sat/Dis/Gntd.. 0/00/0000 Juryy Trial.... HigF~er Court 1 224 HBG 95 Hi~her Court 2 ******************************************************* ************************ General Index Attorney Info WILSON FRANK PLAINTIFF NEARY LAWRENCE J 511 SPRINGHOUSE ROAD HAMPDEN TOWNSHIP CUMBERLAND COUNTY PA WEINSTEIN - HIRSH APPRAISAL DEFENDANT SULLIVAN DANIEL L GROUP 4775 LINGLESTOWN ROAD HARRISBURG PA 17101 COMMERCE BANK/HARRISBURG DEFENDANT SULLIVAN DANIEL L 100 SENATE AVENUE CAMP HILL PA 17011 8599 Judgment Index WILSON FRANK 4/16/1997 JUDGMENT ON VERDICT ******************************************************************************** * Date Entries * ******************************************************************************** 03/04/94 COMPLAINT - CIVIL ACTION 03/21/94 SHERIFF'S RETURN FILED ((SHFF SERVED DEFT COMMERCE BANK HARRISBURG 3/9/94; DEFT WEINSTEIN-I~IRSH APPRAISAL GROUP NOT FOUND 3/15/94) SHFF'S COSTS 60.90 PD ATTY 03/24/94 PRELIMINARY OB ECTION OF DEFENDANT COMMERCE BANK 03/28/94 MOTION FOR LEAVE TO AMEND COMPLAINT AND RULE TO SHOW CAUSE BY JUDGE HAROLD E SHEELY PJ 05/11/94 MOTION TO MAKE RULE ABSOLUTE AND ORDER BY JUDGE HAROLD E SHEELY 05/17/94 AMENDED COMPLAINT 06/09/94 SHERIFF'S RETURN FILED SHFF SERVED DEFT LAWRENCE A HIRSH 5/23/94) SHERIFF'S COSTS 46.50 ~D ATTY 07/12/94 ANSWER AND NEW M~TTER OF DEFENDANTS LAURENCE A HIRSH AND CHARLES F SCHUBERT JR TO PLAINTIFFS AMENDED COMPLAINT 02%08%95 OPINIONEANDRORDERIOF COURTFORINRREMDEFENDANTWSEPRELIMINARY ESQ 03/09/95 NOTICEIOFSAPPEALDGE GEORGE E HOFFER COPIES MAILED 2/8/95 03/15/95 SUPERIOR COURT OF PENNSYLVANIA OFFICIAL DOCKET # 224 HBG 1995 05/17/95 DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS 05/17/95 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY LAURENCE A HIRSH ESQ AND CHARLES F SCHUBERT ES 07/10/95 ORDER - IN P.E APPLICATION FOR RELIEF OF COMMERCE BANK IN THE NATURE OF' A MOTION TO QUASH APPEAL AS INTERLOCUTORY - SUPERIOR COURT GRANT MOTION TO DASH APPEAL - APPELLANT'S REQQUEST FOR OPPORTUNITY TO PETITION L~WER COURT IS DENIED - PER CUI~IAM 07/25/95 MOTION FOR APPROVAL OF COURT FOR DISCONTINUANCE OF COUNT III OF THE AMENDED COMPLAINT 07/25/95 RULE TO SHOW CAUSE - IN RE MOTION FOR APPROVAL OF COURT FOR DISTONTINUANCE OF COUNT III OF THE AMENDED COMPLAINT - ENTERED UPON DEFENDANTS RULE RETURNABLE 7 DAYS AFTER SERVICE - BY JUDGE GEORGE E HOFFER - NOTICE MAILED 7/25/95 07/25/95 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY LAWRENCE J NEARY ESQ 08/08/95 STIPULATION 08/15/95 MOTION TO MAKE RULE ABSOLUTE 08/17/95 ORDER OF COURT - IN RE PLAINTIFF'S MOTION TO MAKE RULE ABSOLUTE - COUNT III OF AMENDED COMPLAINT AGAINST COMMERCE BANK/ HARRISBURG BE MARKED DISCONTINUED - BY JUDGE GEORGE E HOFFER - NOTICE MAILED 10/02/95 ORDER9OF COURT - DATED 10/2/95 - IN RE DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS - DENIED - BY GEORGE E HOFFER J - COPIES MAILED 10/2/95 01/25/96 PRAECIPE FOR LISTING CASE FOR TRIAL BY LAWRENCE J NEARY ESQ 02/22/96 ORDER OF COURT - DATED 2/20/96 - PROTHONOTARY TO RELIST CASE FOR MAY TRIAL TERM - BY HAROLD E SHEELY PJ - COPIES MAILED 2/22/96 51`~ - p~S5`10 Cumber nd County Prothonotary's ice Page 2 vil Case Inqquiry 1994-01070 WILSON FRANK ( WEINSTEIN-HIRSH APPRAISAR Reference No..: Filed........: 3/04/1994 Cass Ty e.....: COMPLAINT Time.........: 15:04 Judgmen~..... 00 Execution Date 0/00/0000 Judge Assigned: HOFFER GEORGE E Sat/Dis/Gntd.. 0/00/0000 Jury Trial.... Higher Court 1 224 HBG 95 Higher Court 2 05/10/96 PRETRIAL CONFERENCE - DATED 5/1/96 - BY GEORGE E HOFFER J 05/22/96 VERDICT - JURY SELECTED 5/20/96 VERDICT FOR THE DEFENDANT 05/31/96 PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF 06/04/96 ORDER OF COURT - DATED 6/3/96 - IN RE PLAINTIFF'S POST TRIAL MOTIONS - REQUEST FOR TRIAL TRANSCRIPT - GRANTED - BY GEORGE E 09/18/96 TRANSCRIPT F~LEDS MAILED 6/5/96 09/18/96 TRANSCRIPT FILED 11/01/96 ORDER OF COURT - DATED 10/31/96 - IN RE ARGUMENT ON PLAINTIFF'S- POST TRIAL MOTIONS - ARGUMENT 11/18/96 3:30 PM CR 3 - BY GEORGE E HOFFER J - COPIES MAILED 11/1/96 04/08/97 OPINION AND ORDER OF COURT - DATED 4/8/97 - IN RE PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF - DENIED - BY GEORGE E HOFFER J - COPIES MAILED 4/8/97 04/16/97 PRAECIPE FOR ENTRY OF JUDGMENT ON THE VERDICT AND JUDGMENT ENTERED ********************k***k#******y**ft.**y***~***~***********a******************** * Escrow Information * Fees & Debits Be~ Bal Pmts/Ad~ End Bal ******************************** ******** ****** ******************************* COMPLAINT 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 APPEAL 30.00 30.00 ~ .00 JDMT 9.00 --------------- 9.00 --------- --- .00 --------- 84.50 84.50 00 ******************************************************************************** * End of Case Information ******************************************************************************** i N ~ `~ T ^~ O O / t ~ ~_~ _ om; ~- _~ ~~ ,_ . _, { ; ! - ~ -, , rn J t`? <~~ r -- _' ;.~ i _ ,, -"7 _,!° (]ry ~ '`f ~ Super Court of Pennsylvania ~•-~- Office of the Prothonotary 434 Main Capitol Building P.O. Box 9300 Harrisburg, Pennsylvania 17108 (717) 772-1294 May 8, 1997 Notice of Appeal Docketing Superior Court Docket No. Assigned 00424HBG97 ^/o. q~ - l0 70 C'c.~.~-Q Tim. PROTHONOTARY Cumberland COUNTY Cumberland Cty. Courthouse Carlisle, Pa 17013 RE: Wilson, F V Hirsh, L & Schuber, C 5~9~g7 You are hereby advised that the attached docket information has been entered into the superior court records in a case in which you appear as an officer of the court. Please review this information carefully and notify this office immediately if you believe correction(s) are in order. Thank you. David A. Szewczak Prothonotary ~ O C ~~ ~ ~ -c f `~~' '~ ~~ ~ rn ~ --~, cn ~ ;~ ~C ~ ' Vie- : ~ _~n ~_r E ~ _ ~~ c- °~ Za 1 rv -< 5~p ~~ ~ G~5~08/97 SUPERIOR COURT_OF PENNSYLVANIA 1236 OFFICIAL DOCKET DOCKET ## 00424HBG97 FULL CAPTION OOlT FRANK WILSON V 002E LAURENCE A HIRSH AND CHARLES F SCHUBERT, JR COUNSEL TITLE 25827 LAWRENCE JOHN NEARY 108-112 WALNUT STREET P O BOX 963 HARRISBURG, PA 17108 23152 HARVEY FREEDENBERG MCNEES WALLACE & NURICK 100 PINE ST., P.O. BOX 1166 HARRISBURG, PA 17108 CONSOLIDATED DOCKET NUMBER BACKGROUND DATA TRIAL COURT RECORDS CATEGORY: CV COURT NAME: CIVIL COUNTY: CUMBERLAND JUDICIAL DISTRICT: 09 CASE TYPE/CHARGE: FOR MAIL OO1T Y 717-238-4776 002E 717-232-8000 TRIAL COURT CHARGES: CIVIL ACTION LAW - COMPLAINT JUDGE(S): HOFFER, G DISPOSITION TYPE: JUDGMENT ENTERED DISPOSITION DATE: 04/16/97 APPEAL FILE DATE: 04/28/97 DISPOSITION ENTERED: TRIAL CRT DOCKET NO.: 1070 CIVIL 1994 OFFENSE TRACKING NO.: STATUS INFORMATION 05/22/97 DOCKETING STATEMENT DUE 06/07/97 LOWER COURT RECORD DUE DOCKET ENTRIES FOR 05/08/97 NOTICE OF APPEAL OOlT 05/08/97 DOCKETING STATEMENT EXITED OOlT T=APPELLANT E=APPELLEE *=COURT APPOINTED Y 6~~ t ~ • t r • r FRANK WILSON Plaintiff v. LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR. Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 1070 CIVIL 1994 CIVIL ACTION -LAW JURY TRIAL DEMANDED PLAINTIFF'S POINTS FOR CHARGE Plaintiff, through his attorney, Lawrence J. Neary, Esquire respectfully requests This Honorable Court to charge the jury as follows: Respectfully submitted, CONNELLY, REID & SPADE Date: ~ 9 / ~ By: 10$-112 Walt Street ~.. P.O. Box 963 Harrisburg, PA 17108 (717) 238-4776 (717) 238-4793 - Telecopier Pa. I.D. #: 25827 53a • 1. Applicable Law: • r ~ + } The liability of the Defendant to the Plaintiff, under Pennsylvania law, is set forth as follows: One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. Restatement of Torts 2d Section 522, Mill-Mar, Inc. v. Statham, 278 Pa Super 296, 420 A2d 548 (1980) 533 • • 2. Duty of Care: The Plaintiff, Frank Wilson, was not in privity with the Defendants, which means that he was not a party to the contract of employment with the Defendants. This, however, does not prevent him from maintaining an action under the legal principle just read to you (Restatement of Torts 2d Section 522) provided that the Plaintiff is considered a beneficiary for whose benefit the information is supplied and the information was intended to influence the Plaintiff in that transaction. It is not necessary that the Plaintiff be known to the Defendants as an individual when the information is supplied. It is enough that the maker of the representation intended to reach and influence either a particular person or persons, known to them, or a group or class of persons, distinct from the much larger class who might reasonably be expected to have access to the information. It is enough that the supplier gives the information for repetition to a certain group or class of persons and the Plaintiff proved to be one of them. Thus, the Court finds that the Plaintiff is a person to whom the law holds that the Defendants would owe a duty of care. Comments to Restatement of Torts 2d Section 552 (1 (a) and (b)) 3 c,3~ • • i ~ r 3. Appraisal Negligence -Standard of Care An appraiser must have and use the ordinary skill, knowledge and care which is ordinarily had and exercised in the appraisal profession. An appraiser whose conduct does not meet this professional standard of care is negligent. You must decide whether the Defendant-appraiser is negligent under this standard. In other words, an appraiser must at least be familiar with the well settled principles of appraisal practice which are of frequent application in the ordinary business of the appraisal profession. An appraiser cannot be held liable for negligence so long as he employs such judgment as is expected by the standard of accepted appraisal practice and has researched all the applicable facts necessary to render that judgment. If, in fact, you find that in the exercise of his judgment this appraiser selected on of two or more values or facts, each of which in the circumstances has substantial support as proper practice by the appraisal profession and is supported by his research, you should not find the appraiser liable for negligence, if the value chosen produces a poor result. But the appraiser who departs from the standard of accepted appraisal cannot excuse himself from the consequences by saying it was an exercise of his judgment. If the exercise of an appraiser's judgment causes him to do that which the standard of 4 53~ • • accepted appraisal practice forbids, you must find the appraiser liable for negligence. Similarly, an appraiser whose judgment causes him to omit doing something which in the circumstances is required by the standard of accepted appraisal practice, is also liable for negligence. You may determine the standard of professional learning, skill and care required of the Defendant from the opinions of the appraiser, including the Defendant, who have testified as expert witnesses as to such standard, or from other evidence which you believe to be relevant to that determination. Pa. SSJI Civil 10.01 D (Attorney Malpractice -Standard of Care) -Modified 5 53~ • • 4. Contributory Negligence The Defendant claims that the Plaintiff was contributorily negligent. Contributory negligence is negligence on the part of a Plaintiff that is a substantial factor in bringing about the Plaintiff s injury. The burden is not on the Plaintiff to prove his freedom from contributory negligence. The Defendant has the burden of proving contributory negligence by a fair preponderance of the credible evidence. You must determine whether the Defendant has proven that the Plaintiff, under all circumstances present, failed to exercise reasonable care for his own protection. The standard of care, knowledge, intelligence and judgment for which the Plaintiff is held is that of a reasonable man and that is, one who is not an expert in matters relating to appraisals. Even if you find that the Plaintiff was negligent, you must also determine whether the Defendant has proven that the Plaintiff's conduct was a substantial factor in bringing about the Plaintiff's injury. If the Defendant has not sustained that burden of proof, then the defense of contributory negligence has not been made out. Pa. SSJI Civil 3.03 (Contributory Negligence), Section 552A of the Restatement 2d of Torts Comment A 6 53'~ • 5. Appraiser Negligence -Legal Cause If you find the Defendant-appraiser was negligent in failing to exercise- the skill, knowledge and judgment which is usually exercised in such circumstances by members in good standing of the appraisal community, you must then decide whether the Defendant's negligence was a legal cause of the Plaintiffs injuries. In order for the negligent conduct to be a legal cause, you must find that Defendant's conduct was a substantial contributing factor in bringing about the Plaintiffs loss. Pa. SSJI Civil 10.01 D (Attorney Malpractice -Legal Cause) -Modified 7 53g < , 6. Damages • If you find that the Defendants are liable to the Plaintiff, you must then find an amount of money damages that you believe will fairly and adequately compensate the Plaintiff for the financial injury that he sustained. The damages recoverable for negligent misrepresentation are those necessary to compensate the Plaintiff for the pecuniary loss to him which the misrepresentation is the legal cause. There are two types of damages that are recoverable. The first, is the difference between the value of what the Plaintiff received in the transaction and the purchase price or value given for it. In this case, the amount paid for the property included the cost of the real estate and the construction mortgage which totals $870,000.00 and the value, as testified to by Plaintiff's expert witness of what was constructed based upon acceptable appraisal methods, was $600,000.00. The difference between these two figures is $270,000.00 which is one item of the recovery to which the Plaintiff is entitled. Plaintiff may also recover any other pecuniary loss suffered as a consequence of the Plaintiffs reliance upon the misrepresentation. In this case, the Plaintiff contends that the cash shortfall of the project, which is the amount of additional funds that he had to contribute, represented such a loss and this amount established by prior proceedings in this Court is $63,623.51. 8 53g ~. • i r ~ y Another item of damages which also has been previously determined by a Court in litigation between the partners is $63,139.69 which also represented a loss to the Plaintiff as a result of his involvement in the project. Restatement 2nd of Torts, Section 5226 and Pa. SSJI 6.00 (Civ) Damages 9 g X40 r~ U FRANK WILSON, v. Plaintiff LAURENCE A. HIRSH and CHARLES F. SCHUBERT, JR., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 1070 CIVIL 1994 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS' POINTS FOR CHARGE 1, Plaintiff alleges that Defendants owed a duty to Plaintiff to properly appraise the value of the proposed building which was to be constructed. To support a claim of negligence, Plaintiff bears the burden of establishing (1) that Defendants owed a duty of care to him; (2) that Defendants breached such duty; and (3) that Plaintiff's injuries were proximately caused by such breach. Zanine v. Gallagher, 345 Pa. Super. 119, 123, 497 A.2d 1332, 1334 (1985). 5~1 • 2. Defendants cannot be liable to Plaintiff for negligence if Defendants did not owe Plaintiff a duty of care. Zanine v. Gallagher, 345 Pa. Super. 119, 123, 497 A.2d 1332, 1334 (1985). - 2 - 5 L}a- • . • 3. In order for Plaintiff to prove that Defendants owed him a duty of care, Plaintiff must offer credible evidence to satisfy all of the requirements of §552 of the Restatement (Second) of Torts. This section states: §552. Information Negligently Supplied for the Guidance of Others (1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. (2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered (a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and (b) true reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction. (3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them. Restatement (Second) of Torts §552 (1977) . - 3 - 5~}3 ~ i 4. Under Restatement (Second) of Torts §552, Defendants, such as Hirsh and Schubert, are not liable to a third party, such as Plaintiff, where the information that Defendants supply is intended for the use of someone other than that third person, even if Defendants are aware that the information they provide is customarily used in a wide variety of transactions and may, in fact, be relied upon by persons other than the intended user of the information. Restatement (Second) of Torts §552, cmt. n, illus. 12. - 4 - 5 `~`~ . • 5. PROFESSIONAL MALPRACTICE - ELEMENTS OF THE CAUSE OF ACTION To award damages to the Plaintiff in this action, you must find the following elements to have been established by a fair weight of the evidence: 1. that defendant-appraiser undertook to provide professional services on Plaintiff's behalf; 2. that the defendant-appraiser failed to exercise ordinary skill, knowledge and judgment in rendering these professional services; 3. that the Plaintiff suffered injury; and 4. that the defendant-appraiser's failure to exercise the skill and knowledge demanded of him by law was a substantial contributing factor in bringing about Plaintiff's injuries. Pa. SSJI Civil l0.OlA (Attorney Malpractice) Modified - 5 - 5~ • • 6. PROFESSIONAL NEGLIGENCE - STANDARD OF CARE An appraiser .must have and use the ordinary skill, knowledge and care which is ordinarily had and exercised in the appraisal profession. An appraiser whose conduct does not meet this professional standard of care is negligent. You must decide whether the defendant-appraiser is negligent under this standard. In other words, an appraiser must at least be familiar with the well settled rules of appraising and rules of practice which are of frequent application in the ordinary business of the appraiser's profession. An appraiser cannot be held liable for negligence so long as he employs such judgment as is expected by the standard of accepted appraisal practice and has researched all the applicable principles of his profession necessary to render that judgment. If, in fact, you find that in the exercise of his judgment this appraiser selected one of two or more courses of action, each of which in the circumstances has substantial support as proper practice by the appraiser profession and is supported by his research, you should not find the appraiser liable for negligence if the course chosen produces a poor result. But an appraiser who departs from the standard of accepted appraisal practice cannot excuse himself from the consequences by saying it was an exercise of his judgment. If the exercise of an appraiser's judgment causes him to do that which the standard of - 6 - y4~ • • • accepted appraisal practice forbids, you must find the appraiser liable for negligence. Similarly, an appraiser whose judgment causes him to omit doing something which in the circumstances is required by the standard of accepted appraisal practice, is also liable for negligence. You may determine the standard of professional learning, skill and care required of the defendants from the opinions of the appraisers, including the defendants, who have testified as expert witnesses as to such standard, or from other evidence which you believe to be relevant to that determination. Pa. SSJI Civil 10.01 (c) (Attorney Malpractice) Modified - 7 - 5`}1 • 7. PROFESSIONAL NEGLIGENCE - LEGAL CAUSE If you find the defendant-appraiser was negligent in failing to exercise the skill, knowledge and judgment which is usually exercised in such circumstances by members in good standing of the appraisal community, you must then decide whether Defendants' negligence was a legal cause of the Plaintiff's injuries. In order for the negligent conduct to be a legal cause, you must find that Defendants' conduct was a substantial contributing factor in bringing about the Plaintiff's injuries. To impose liability upon the Defendants you need not find that the defendant-appraiser's conduct was the sole or exclusive cause of the Plaintiff's injuries. Rather, if you find that the Defendants' conduct was negligent and that their negligence increased the risk that the harm sustained by the Plaintiff would occur, you may impose liability upon the Defendants. The fact that some other cause concurs with the negligence of the Defendants in producing the Plaintiff's injury will not relieve the Defendants from liability unless you find the Defendants have proved that such other cause would have produced the Plaintiff's injuries independently of his negligence. Pa. SSJI Civil 10.O1D (Attorney Malpractice) Modified - 8 - 5'~g ~ ~ 8. CONTRIBUTORY NEGLIGENCE The Defendants claim that the Plaintiff was contributorily negligent. Contributory negligence is the negligence on the part of a Plaintiff that is a substantial factor in bringing about the Plaintiff's injury. The burden is not on Plaintiff to prove his freedom from contributory negligence. The Defendant has the burden of proving contributory negligence by a fair preponderance of the credible evidence. You must determine whether the Defendant has proven that the Plaintiff, under all the circum- stances present, failed to exercise reasonable care for his own protection. Defendants claim that Plaintiff is contributorily negligent in this case because Plaintiff failed to take reasonable steps to make sure that the development he was investing in was viable; did not pay close enough attention to the zoning approval process to know that the original plan for the building development was not approved and that a building with less net leasable space than in the original plan was actually constructed; and, although Plaintiff claims to have relied upon the appraisal performed by Defendants, Plaintiff never saw a copy of the complete appraisal until several years after the building development was complete. Even if you find that the Plaintiff was negligent, you must also determine whether the Defendants have proven that the Plaintiff's conduct was a substantial factor in bringing about - 9 - 5~~ • • the Plaintiff's injury. If the Defendants have not sustained that burden of proof, then the defense of contributory negligence has not been made out. Pa. SSJI Civil 3.03 - 10 - 55(U • • 9. DAMAGES If you find that Defendants are liable to Plaintiff, you must then find an amount of money damages that you believe will fairly and adequately compensate the Plaintiff for the financial injury that he sustained. The damages recoverable for negligent misrepresentation are those necessary to compensate the Plaintiff for the pecuniary, or out-of-pocket loss to him which the misrepresentation is the legal cause. Plaintiff is not entitled to his "lost profits" or to the "benefit of his bargain." In this case, the amount of damages for which Plaintiff may be entitled is the difference between the cost of the real estate and the construction mortgage and the cost of the actual building as constructed. In this case, Plaintiff's real estate appraisal expert has placed the value of the land at $82,500 and the construction mortgage was $635,000, or a total of $717,500. The Plaintiff's expert appraiser places the value of the property actually built at $600,000. The difference is $117,500. This - 11 - 551 difference is the maximum amount of damages to which Plaintiff is entitled if you find that Defendants are liable for his loss. Restatement (Second) of Torts ~5222(b) and Pa. SSJI 6.00 Civil Damages Respectfully submitted, McNEES, W NURICK rvey reed e g I.D. 231 2 Michael R. Kelly I.D. No. 85584 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr. May (7 , 1996 - 12 - 55a CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by hand delivery upon the following: Lawrence J. Neary, Esquire Connelly, Reid, & Spade P.O. Box 963 Harrisburg, PA 17108 (Attorneys for Plaintiff) Michael R. Kelley Counsel for Defendants Laurence A. Hirsh and Charles F. Schubert, Jr. May ~1 19 9 6 553 f:~homeUjnUMwilson.brf FRANK WILSON, : IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 1070 CIVIL 1994 LAURENCE A. HIRSH and :CIVIL ACTION -LAW CHARLES F. SCHUBERT, JR., Defendants :JURY TRIAL DEMANDED PLAINTIFF'S BRIEF IN SUPPORT OF MOTION FOR POST TRIAL RELIEF I. STATEMENT OF THE CASE: A. PROCEDURAL HISTORY Plaintiff initially filed a Complaint on November 12, 1993. Preliminary Objections were filed by Defendant Commerce Bank on March 24, 1994. On May 12, 1994 Plaintiff filed an Amended Complaint to which Defendants Laurence A. Hirsh and Charles F. Schubert, Jr. filed an Answer with New Matter on July 11, 1994. The Cumberland County Court on February 8, 1995 filed an Opinion and Order granting Defendant Commerce Bank's Preliminary Objections in the Nature of a Demurrer holding that the Bank owed no duty to Plaintiff. Thereafter, on May 15, 1995, Defendants filed a Motion for Judgment on the Pleadings and while said Motion was pending, by Stipulation, the parties entered additional allegations to the Amended Complaint. On August 2, 1995, after the submission of Briefs and Oral Argument, Cumberland County Court entered an Order denying Defendants' Motion for Judgment on the pleadings. The case proceeded to trial before the Honorable George E. Hoffer on May 555 C~ 20, 1996 and at the conclusion of said trial on May 22, 1996 the jurors responded to Question No. 1 on the Verdict Slip in the negative which resulted in judgment being entered in favor of the Defendant. Plaintiff filed a Motion for Post-Trial Relief on May 31, 1996 and the matter is now before the Court for argument. B. STATEMENT OF PLACE OF RAISING OR PRESERVING PRESERVATION OF ISSUES: Plaintiff requested Point for Charge No. 2 which read as follows: The Plaintiff, Frank Wilson, was not in privity with the Defendants, which means that he was not a party to the contract of employment with the Defendants. This, however, does not prevent him from maintaining an action under the legal principle just read to you (Restatement of Torts 2d Section 522) provided that the Plaintiff is considered a beneficiary for whose benefit the information is supplied and the information was intended to influence the Plaintiff in that transaction. It is not necessary that the Plaintiff be known to the Defendants as an individual when the information is supplied. It is enough that the maker of the representation intended to reach and influence either a particular person or persons, know to them, or a group or class of persons, distinct from the much larger class who might reasonably be expected to have access to the information. It is enough that the supplier gives the information for repetition to a certain group or class of persons and the Plaintiff proved to be one of them. Thus, the Court finds that the Plaintiff is a person to whom the law holds that the Defendants would owe a duty of care. 2 ~~ U The Court read the entire charge to the jury with the exception of the final sentence. (N.T.322). At the conclusion of Points for Charge counsel for the Plaintiff noted an exception for the refusal of the Court to charge as a matter of law that the Defendants owed a duty to the Plaintiff. (N.T. 331). In their deliberations, the jurors answered the first question on the Verdict Slip which is set forth below: Question 1 Did Defendants supply the appraisal report for the guidance of Plaintiff in his business transactions? YES NO X If your answer to Question No. 1 is "No", return to the Courtroom and do not answer any further questions. If your answer to Question No. 1 is "Yes", go on to Question No. 2. Plaintiffs Motion for Post-Trial Relief submits that the Court was incorrect in refusing to grant the binding instruction requested by the Plaintiff regarding the existence of a duty of care owed by the Defendants to the Plaintiff. 3 55't • C. STATEMENT OF FACTS For the purpose of this Post-Trial Motion, the only relevant facts relate to the relationship of the parties in the context of whether the Defendants owed Plaintiff a duty of care. The jury did not reach questions numbers 2 through 9 on the Verdict Slip which address the other elements of the cause of action, including negligence and damages which for the purpose of this Motion are not relevant. The facts relevant to the issue of whether there was a duty of care are set forth below. Plaintiff, Frank Wilson, in February 1988 entered into an Agreement of Sale as the seller for a vacant lot on Market Street in Hampden Township to George Adams, as nominee, with the buyer ultimately being identified as the partnership of Adams-Molinari (N.T. 10-11 286). Prior to this, Defendant Hirsh, was requested by George Adams (N.T. 203-204) on or about June 24, 1988 to perform an appraisal of an office building to be constructed on land owned by Wilson, Garn and McKee and that the Adams-Molinari partnership was to be the buyer/developer (N.T. 215). Mr. Hirsh's only contact was with Mr. Adams who ordered the appraisal and who provided the information necessary for the appraisal. While he knew of Molinari's involvement in the project, he never discussed the project with her. (N.T. 288). Work was done on the appraisal between June 1988 and October 19, 1988 when, it appeared from the notes in the Hirsh file, that Hirsh was directed by George Adams to forward the completed appraisal to Commerce Bank. (N.T. 217), for construction financing purposes. (N.T. 285). 4 55$ • The final appraisal identified Wilson, Garn and McKee as the owners of the land and the buyer/developer to be the Adams-Molinari Partnership. (N.T. 13, 215). Between February of 1988 and March 1989 the structure of the project changed and Frank Wilson became partners with George Adams in development of the office building which was originally to be built for the Adams-Molinari Partnership. (N.T. 18). Commerce Bank issued a Commitment Letter for the construction financing to Frank Wilson and George Adams in February 1989 requiring a appraisal to be performed at the borrower's cost and that the appraised value was to be in excess of a certain amount as a condition of the loan. (N.T. 225). Commerce Bank already had a copy of the Hirsh appraisal before the Commitment Letter was issued. (N.T. 228). This was the only appraisal performed and submitted in relation to this project. (N.T. 88). The appraisal fee of $3,045.00 was paid to Hirsh at the loan closing in March of 1989 from the proceeds of the construction mortgage issued to Wilson, Garn and McKee which became the partnership name for the partnership consisting of George Adams and Frank Wilson who became the buyer/developer of the project. (N.T. 17-18), the new partnership documents were formalized at the loan closing in March of 1989. (N.T. 15). Hirsh did not know Wilson personally (N.T. 286), other than his identification in the appraisal as the owner. (N.T. 285). He did not know that Wilson had taken the place of Molinari in the development of this project. 5 559 II. STATEMENT OF QUESTIONS INVOLVED: DID THE COURT ERR WHEN IT REFUSED TO CHARGE AS A MATTER OF LAW THAT THE PLAINTIFF WAS A PERSON OR A MEMBER OF A GROUP OR CLASS OF PERSONS FOR WHOSE BENEFIT THE APPRAISAL WAS PERFORMED SUCH THAT THE DEFENDANTS OWED A DUTY OF CARE TO THE PLAINTIFF? Suggested Answer: Yes III. ARGUMENT: A. WHETHER A DUTY EXISTS IN THE FIRST INSTANCE IS A QUESTION OF LAW TO BE DECIDED BY THE COURT RATHER THAN THE JURY. Question 1 on the Verdict Slip, which was taken directly from the wording of the Restatement 2nd of Tort §552 which provides as follows: One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. (Emphasis added). This Court noted in it's Decision on the Defendant's Motion for Judgment on the Pleadings that this section of the Restatement was adopted in Pennsylvania in the case of Mil!-Mar, Inc., v. Statham, 278 Pa Super 296, 420 A.2d 548 (1980). It is axiomatic that a finding of negligence requires a finding that the Defendant breached a duty owed to the Plaintiff. In Banyas v. Lower Bucks Hospital, 437 A.2d 6 5~ • 1236 (Pa. Super 1981), the Superior Court in determining whether a duty exists, observed: Our Supreme Court discussed the concept of duty in Sinn v. Burd, supra. Citing Prosser Palsgraf Revisted, 52 Mich.L.Rev. 1, 14-15 (1953), the court noted: In the end the court will decide whether there is duty on the basis of the mores of the community, "always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind." (Sinn v. Burd, 486 Pa 146, 404 A.2d 672 (1979). Likewise, in Huber v. Commonwealth Department of Transportation, 551 A.2d 1130 (Pa. Commw. 1988), the Court succinctly stated: Whether a duty exists in the first instance is a question of law. Mindala v. American Mofors, Corporation, 518 Pa. 350, 543 A.2d 520 (1988). Thus, questions of law are to be decided by the court rather than by the jury. In Hoffman v. Sun Pipeline Company, 575 A.2d 122 (Pa. Super 1990). The Superior Court observed that the question of whether to impose a duty is essentially one of policy. Duty in any given situation is predicated upon the relationship existing between the parties at the relevant time. Zanine v. Gallagher, 497 A.2d 1332, 1334 (Pa. Super 1985). Thus, it is submitted that the Court, under the facts in this case, should have made a determination as a matter of law whether the Plaintiff was a person to whom the 7 5~` • Defendants owed a duty of care. By not fully charging the jury, as requested by the Plaintiff, the Court left the broad policy issue of the determination of the existence of a duty to be decided by the jury when, in fact, this decision should have been made by the Court. It is submitted that the facts, which are not in dispute and the application of the Restatement would establish that the Plaintiff would have been within a group or class of persons to whom a duty was owed. B. THE APPRAISAL WAS PROVIDED AS A PROFESSIONAL SERVICE UPON WHICH RELIABILITY BY A THIRD PARTY WAS FORESEEABLE THUS, IMPOSING A DUTY OWED TO THE PLAINTIFF. There is no dispute that Defendants Hirsh and Schubert were professional appraisers who utilized their combined skill and knowledge to produce the October 19, 1988 real estate appraisal which was submitted to Commerce .Bank to meet the requirements for a financing commitment and which was relied upon the Plaintiff in assessing the feasibility of his participation in the partnership. As skilled appraisers, Defendants are held to a higher level of accountability for their actions, including foreseeability that anyone involved in a financial arrangement, in this case a construction mortgage, based upon Defendants' professional judgment, would rely upon such expertise. This premise has been recognized by the Pennsylvania Appellate Courts in Garbish v. Malvern Federal Sav. & Loan Assoc., 358 Pa. Super 282, 517 A.2d 547 (1986). In that case of first impression, mortgagors of a property relied upon the mortgagee's experience and skill as the sole distributor of construction funds. The determinative factor in Garbish was the reliance of one party upon the skill of 8 5~a ~ ~ another party. In Garbish, the Court stated that when a person "either has or procures his appointment by asserting that he has skill beyond that of the ordinary prudent person, he will be judged by the level of skill he has or that he claims to have, whichever is higher." Id. at 554. Plaintiff, Frank Wilson, knew that the Defendants Hirsh and Schubert were hired to prepare an appraisal which was to be submitted to Commerce Bank regarding the project, and that the appraisal was to be used by the bank as the basis for granting a construction loan. Wilson relied upon Hirsh's and Schubert's professional accuracy in the appraisal to fulfill Commerce Bank's loan precondition and, for his own decision to financially commit to the partnership construction project. Wilson's reliance was appropriate and both Hirsh and Schubert should have foreseen such reliance upon their professional work product. While the Pennsylvania Appellate Courts have not yet specifically addressed the duty of an appraiser to other than a party in privity with the appraiser, other jurisdictions have held that foreseeability on behalf of the appraiser is a strong factor in determining such a duty to the third party. The old rule was that person, not a party to a contract, i.e. not a privity, could not sue in negligence arising from a contract. This now a minority rule. The majority of Courts allow third parties to sue in negligence and have established the boundaries of liability to third persons under three separate criteria. The first is "§552 Liability", which is a middle of the road rule; the second is the "Foreseeable Plaintiffs", which is more 9 5~ • • liberal and the most conservative is the "Known Third Party Plaintiffs". 18 Real Estate L.J. §233, "Real Estate Appraisal: The Legal Liability" (1990). An example of the liberal application of the "Foreseeable Plaintiffs" is Costa v. Neimon, 366 N.W.2d 896 (mss. Ct. App. 9985). In Costa v. Neimon, 366 N.W.2d 986 (Wis. Ct. App. 1985), real estate purchasers brought action to recover from lender's real estate appraiser for negligent misrepresentation. The plaintiffs in Costa sought a homeownership loan from a lending institution which hired the appraiser and preconditioned the loan upon the appraisal of the subject property. In holding the appraiser liable to a third party, the Costa court stated: It is not necessary that the appraiser have foreseen the harm to a particular plaintiff, although here ... harm to the plaintiff was foreseeable. Neimon should have foreseen that a prospective buyer of the property being appraised was "within the ambit" of harm which would result from a carelessly done appraisal. In the case before the Court, it is clearly foreseeable that the very person for whom the appraisal was performed i.e. the buyer/developer, would be harmed if the appraisal was done carelessly. An example of the more conservative or "Known Third Party Plaintiffs" is Larsen v. United Federal Savings and Loan Assoc. of Des Moines, 300 N. W.2d 281 (lows 1981) (See, 21 ALR 4th 855). In Larsen, the prospective home owners relied upon appraisal figures in order to decide whether or not to engage in the financial commitment to purchase a home. Specifically, the Court said: 10 5~0~ • Nor is it necessary ... that the party suing for negligence be the only party for whom the information was provided. It is enough that he or she be a third party whom the negligent provider of the information knew would utilize it. Even though the appraisal might be made primarily for the benefit of the lending institution, the appraiser should also reasonably expect the home purchaser, who pays for the appraisal and to whom the results are reported (and who has access to the written report on request), will rely upon the appraisal to affirm this or her belief the home is worth the price he or she offered for it. The purchaser of a home should be among those entitled to rely on the accuracy of the report and therefore should be entitled to sue for damages resulting from a negligent appraisal. 300 N.W.2d, at 287. In the present case, Wilson stepped into the shoes of the proposed developer, i.e. the Adams-Molinari partnership, for whom the appraisal was requested. Wilson was also a partner in the entity that ultimately paid for the appraisal. Hirsh understood the purpose of the appraisal was to form the basis for a construction loan and was directed, at or about the time that the appraisal was finalized to forward a copy of the appraisal to Commerce Bank. A copy of the summary of the appraisal was also provided to Wilson, who relied upon the value stated in deciding whether to become involved in the project. While Hirsh did not know Wilson personally, he also did not have any contact with Molinari, one of the original partners who was identified on the appraisal as the proposed buyer and developer. Thus, Wilson would also clearly fit within the category of a "Known Third Party Plaintiff." The third or moderate approach is the "§552 Liability" contained in the Restatement (Second) of Torts and as illustrated in the case of Haberman v. Washington 11 5~~ • Public Power Supply System, 744 P.2d 1032 (Wash. 1987). In that case, the Court relied upon Restatement (Second) of Torts, §552 (1977) to determine the sufficiency of bondholder claims in connection with purportedly negligent misrepresentations of fact by numerous individuals involved in the construction and financing of a system of nuclear power plants. In that case, the Court set forth three circumstances under which a party would be held liable for negligent misrepresentations. Liability ... is thus limited to cases where (1) the defendant has knowledge of the specific injured party's reliance; or (2) the plaintiff is a member of a group that the defendant seeks to influence; or (3) the defendant has special reason to know some member of a limited group will rely upon the information. Haberman, at 1067. In the present case, while Hirsh had no specific knowledge of Wilson's reliance on the appraisal, there is no question that Wilson belonged to a class of buyers, in this instance, owner/developers, for whom the appraisal of the commercial property was intended and that, as a member of that class or group he could be expected to rely upon the appraisal made by Hirsh. Thus, it is for this Court to adopt one of the three approaches to define the extent to which an appraiser owes a duty to those who rely upon his appraisal. The Plaintiff submits that under any one of these 3 approaches he becomes a person to whom a duty of care is owed because of the close relationship, i.e. a partner in the partnership for whom the appraisal was performed. The Plaintiff is not an outsider or so far removed from the person for whom the appraisal was performed, so as to place him outside of the duty of care. 12 ~ ~u C7 • In Hoffman v. Sun Pipe Line Company, 575 A.2d 122, 125 (Pa. Super 1990) the Court,.. citing Prosser and Keeton, observed, that,"'duty', is only an expression of the subtotal of those considerations of policy which lead the law to say that a plaintiff is entitled to protection. Because questions concerning 'duty' arise in ever changing contexts, courts have employed a variety of analytical approaches towards, for example, courts have spoken of both 'foreseeability' (of a particular plaintiff or a particular harm) and 'proximate cause' while attempting to delineate the scope of a defendant's duty. The essential goal to defining the duty is to arrive at some method of limiting liability to those consequences which have some reasonably close connection with the defendant's conduct and the harm which is originally threatened". It is submitted, to hold that the Plaintiff, as a matter of law is not owed a duty of care, would relieve appraisers from liability for their work product to all but the person who was in privity with the appraiser. In this case, it could be argued that Wilson, when he stepped into the shoes of Molinari as the buyer/developer, and when the partnership, of which he was a partner actually paid for the appraisal, was actually in privity with the appraiser or was in such a close relationship that the duty of care should clearly extend to him under any one of the 3 approaches to setting the boundaries of liability. Whether the duty extends to him is for the Court to decide as a matter of policy and not for the jury to decide as a factual question. 13 5~'~ IV. CONCLUSION: s .For the reasons stated above, Plaintiff requests Post Trial Relief in the form of a grant of a new trial wherein it is established, as a matter of law, that the Plaintiff, under the circumstances of the case, was a member of the group or class of persons to whom the Defendant owed a duty of care such that the Verdict Slip should omit Question #1. Respectfully Submitted, CONNELLY, REID & SPADE Date: 0 ~ ~ By: Lawr ce : Neary,( squire Attor~iey or Plaint'ff, Frank 'Is 108 - 2 Walnut~S reet P. O. Box 963 ~ Harrisburg PA 17108 (717) 238-4776 (717) 238-4793 - Telecopier Pa. I.D. No. 25827 14 5~~ .+ CERTIFICATE OF SERVICE • I, Lawrence J. Neary, Esquire, of Connelly, Reid, & Spade, attorneys for Frank Wilson, hereby certify that I have on the date shown below, served a copy of the foregoing Plaintiff's Brief in Support of Motion for Post Trial Relief to the person(s) and in the manner indicated below: HARVEY FREEDENBURG, ESQUIRE MCNEES, WALLACE & NURICK 100 PINE STREET HARRISBURG, PA 17108 UNITED STATE FIRST CLASS MAIL, POSTAGE PREPAID Respectfully Submitted, CONNELLY, REID & SPADE Date: 4' ~ By: ~a r nce ~. eary, t rney f r lainti ran Wilson 108 - 11 alnut eet P. O. Box 963 Harrisburg PA 17108 (717) 238-4776 (717) 238-4793 - Telecopier Pa. I.D. No. 25827 ~~ r , • FRANK WILSON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 1070 CIVIL 1994 LAURENCE A. HIRSH and CIVIL ACTION - LAW CHARLES F. SCHUBERT, JR., and COMMERCE BANK/HARRISBURG, Defendants JURY TRIAL DEMANDED DEFENDANTS' BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF I. PROCEDURAL HISTORY Plaintiff initiated this action by filing a Complaint on November 12, 1993. This case proceeded to trial before the Honorable George E. Hoffer from May 20, 1996 until May 22, 1996. At the conclusion of trial, the jury, in response to the first question on the verdict slip, found that Defendants did not supply the appraisal report at issue for the guidance of Plaintiff in his business transactions. A verdict for Defendants therefore was entered. II. ALLEGED BASIS OF POST-TRIAL MOTION The first question set forth on the verdict slip submitted to the jury was as follows: "Question No. 1: Did Defendants supply the appraisal report for the guidance of Plaintiff in his business transactions? Yes No X If your answer to Question No. 1 is "no," return to the Courtroom and do not answer any further questions. If your answer to Question No. 1 is yes, go on to Question No. 2. 5n ~ • In its Point for Charge No. 2, Plaintiff requested a charge regarding the significance of privity as it relates to Restatement (Second) of Torts X522 (1977). This Point for Charge is set forth in full at page 2 of Plaintiff's brief. Plaintiff had requested that the following be included at the end of Point for Charge No. 2: "Thus, the Court finds that the Plaintiff is a person to whom the law holds that the Defendants would owe a duty of care." The Court did not charge the jury as to the above quoted section of the Point for Charge. Plaintiff now contends that this was error and is a basis for a new trial. III. STATEMENT OF FACTS The following facts are relevant to Plaintiff's Motion for Post-Trial Relief. Plaintiff Frank Wilson ("Wilson") was the owner of unimproved land on Market Street in Camp Hill and entered into a business deal to develop an office building on the land. In June, 1988, the former corporation known as Weinstein- Hirsh Appraisal Group (now dissolved and hereinafter referred to as "Hirsh") was requested by George Adams, a member of the Wilson, Garn, McKee Partnership, to perform an appraisal of the fee simple interest in property assuming completion of construction, located at 3507 Market Street, Camp Hill, Cumberland County, for the benefit of Commerce Bank, the prospective lender for this office building project. (N.T. 203- 205, 215). - 2 - ~~~ ` ~ • • By letter dated October 19, 1988, Hirsh submitted his appraisal to Dwayne Beech, Vice President of Commerce Bank (N.T. 60) The appraisal stated the market value of the fee simple interest of the property to be $925,000. That appraisal was based upon a total gross building area of 9,159 square feet and a net leasable area of 7,500 square feet. In fact, subsequent to the submission of the appraisal, the plans for the building were changed, reducing the net leasable area to 6,450 square feet. This change was never communicated to Hirsh, and at no time was he requested to update his appraisal. (N.T. 59-71) Some five months after the Hirsh appraisal was completed, and with changes to the project never communicated to Hirsh, the partnership with which Wilson was involved, and Commerce Bank, closed on a loan in the amount of $650,000. Closing took place on March 29, 1989. (N.T. 62). Although Wilson saw a transmittal letter and summary of appraisal prior to closing, Wilson never saw a copy of the complete appraisal performed by Hirsh prior to closing on the loan with Commerce Bank. (N.T. 43-47). Wilson never had any contact with Hirsh regarding the appraisal. (N.T. 59). The appraisal was not addressed to Wilson and was never sent to him. (N.T. 64) The summary of the appraisal, and the. appraisal, did not contain any language which suggested that the proposed office building was a good or prudent investment for anyone, including - 3 - ~~, ~ ~ Wilson. (N.T. 64). Nonetheless, Wilson claims that he relied upon the appraisal in making his business decision to enter into the project. (N.T. 64-65). IV. ISSUE WHERE PLAINTIFF MUST PROVE, UNDER SECTION 552 OF THE RESTATEMENT (SECOND) OF TORTS, THAT DEFENDANTS SUPPLIED HIM WITH "FALSE INFORMATION FOR THE GUIDANCE OF" PLAINTIFF IN HIS BUSINESS TRANSACTIONS, AND WHERE CONFLICTING FACTS ON THIS ISSUE WERE PRESENTED AT TRIAL, DOES THE COURT PROPERLY SUBMIT THIS ISSUE TO THE JURY FOR DETERMINATION? V. ARGUMENT A. Standards For Ruling On A Motion For New Trial. The decision to order a new trial is one that lies within the discretion of the trial court. Coker v. S.M. Flickinger Co., 533 Pa. 441, 625 A.2d 1181 (Pa. 1993). The trial court's decision in denying a motion for new trial will be overturned on review only if it is determined that the court committed a clear abuse of discretion or error of law. Chiaverini v. Sewickley Valley Hosp., 409 Pa. Super. 630, 598 A.2d 1021 (1991), appeal denied, 530 Pa. 659, 609 A.2d 167 (1992). B. The Issue Of Whether Defendant "Supplied False Information For The Guidance" Of Plaintiff In His Business Transactions Was Properly Submitted To The Jury. One of the chief factual disputes in this case was whether Hirsh supplied the real estate appraisal "for the guidance of" - 4 - c,~3 ' • • Wilson in his business transaction. At trial, the factual testimony included that the appraisal was requested for the benefit of Commerce Bank, the prospective lender for the project, and that Hirsh sent the appraisal to Commerce Bank, and not to Wilson, because he considered Commerce Bank to be his client. The appraisal submitted by Hirsh contained no representations as to the viability of the business venture. It contained no projections for income from the property. Hirsh testified, and it was corroborated by testimony from personnel from Commerce Bank, that the sole purpose of the appraisal was to aid Commerce Bank in determining whether or not it would loan the money for the project. Finally, Wilson admitted that he had never seen the appraisal prior to deciding to close on the project with Commerce Bank. On the other side of the issue, Wilson testified that he was a member of the partnership that had requested the appraisal on behalf of Commerce Bank, that he, in fact, had seen a summary of the appraisal prior to closing on the deal with Commerce Bank, and that he relied upon the appraisal in making the investment decision to participate in the real estate development venture. All of the above issues are factual issues which must be resolved by the jury before any determination can. be made as to whether Hirsh could be liable to Wilson under Section 552 of the Restatement (Second) of Torts. It is hornbook law that questions - 5 - ~~ ~ • i of fact in a negligence case are for the jury to decide and may not be decided by the Court as a matter of law. Bloom v. DuBois Regional Medical Ctr., 409 Pa. Super. 83, 597 A.2d 671 (1991). Whether an act or failure to act constitutes negligence of any degree is an issue that may be removed from consideration by the jury, and decided as a matter of law, only where the case is entirely free from doubt and there is no possibility that reasonable jury members could differ on the issue of negligence. Id. Furthermore, it is beyond dispute that credibility of witnesses is for the jury alone to determine. The determination of the reasonableness of each party's actions and the reconcilia- tion of conflicting statements is solely within the province of the jury. Seewaaen v. Vanderkluet, 338 Pa. Super. 534, 488 A.2d 21 (1985). Because factual disputes existed as to whether the appraisal was provided "for the benefit of" Plaintiff, this issue was properly submitted to the jury. Other jurisdictions likewise hold that the issue raised by Wilson is one for the jury. In Stotlar v. Hester, 582 P.2d 403 (N.M. Ct. App. 1978), cert. denied, 585 P.2d 324 (N.M. 1978), the Campbells hired Hester to appraise the Campbells' property. Stotlar claimed reliance upon the appraisal and damages as a result. The court held that there was a factual issue as to whether Stotlar had relied upon Nester's appraisal. There clearly is a factual issue as to plaintiffs' reliance on Nester's appraisal. The Campbells hired Hester - 6 - ~~5 • to appraise the Campbells' property. There is no showing as to the express provisions of this contract. However, inferences as to the intent of the parties in entering the contract were shown. The appraisal report limits its use by anyone other than the Campbells, the mortgagee, other financial institutions or appraisal organizations, or government organizations without the prior written consent of the appraiser. This limitation carries an inference that the appraisal was not intended for the benefit of prospec- tive purchasers.... However, there is a showing which conflicts with the limitation in the appraisal. The affidavit of the real estate selling agent, who was the agent of the Campbells, states that the appraisal was for the purpose of refinancing the property.... This showing carries an inference that the appraisal was obtained so that a purchaser from the Campbells could finance the purchase through the financial institution. This showing in this paragraph raises a factual issue as to whether a prospective purchaser was an intended beneficiary of the appraisal, and a factual issue as to whether Hester knew of this intention. 582 P.2d at 407-408. (emphasis added). Stotlar, therefore, finds that a jury question is created under facts very similar to those involved in this case. Wilson cites a number of cases for the proposition that the issue of whether or not there is a duty owed in a negligence case, is one for the Court to decide as a matter of law, not for the jury. His reliance on these cases is misplaced, since they do not support his Motion for Post-Trial Relief. First, none of the cases cited by Wilson hold that the Court should have taken the case from the jury and ruled, as a matter of .law, for the Plaintiff. All of the cases cited by Wilson involve cases where the Defendants were seeking summary judgment or a directed - 7 - ~~u • • verdict on the basis that the evidence submitted was uncontroverted and required a verdict in their favor as a matter of law. Second, none of the cases cited by Wilson deal with situations where there were factual issues involving whether a duty existed. Where there are factual issues as to whether a duty existed, the proper result is for the Judge to permit the case to go to the jury. In other words, the only circumstance under which the Judge should take the issue of negligence from the jury is where there are no factual disputes as to whether a duty existed. That is obviously not the case here and, there- fore, the Court's submission of the issue to the jury under appropriate instructions was correct. One of the cases cited by Wilson, an out of state decision, actually refutes Wilson's position. Haberman v. Washington Pub. Power Supply Sys., 744 P.2d 1032 (Wash. 1987), modified, 750 P.2d 254 (Wash. 1988), appeal dismissed, 488 U.S. 805 (1988), deals specifically with Section 552. In that case, the court denied defendant's motion to dismiss on the basis that factual issues existed as to whether defendant owed a duty to plaintiff under Section 552. However, because the trial court dismissed intervenors' allegations on the pleadings, we have no factual basis from which to discern respondent professionals' knowledge or intentions. Because this information is necessary to a determination of whether a duty exists to intervenors for alleged misrepresentations, we must remand to the trial court for further factual determination. - 8 - 5~~ 744 P.2d at 1068. This case did not deal directly with the issue of whether issues of duty should be submitted to the jury. However, the court in Haberman acknowledged that there may be factual issues which must be resolved before a determination of whether duty lies under Section 552 can be made. The factual issues cannot be resolved by the court, but must be submitted to the jury for determination. Haberman thus lends further support to Hirsh's position that the Motion for Post-Trial Relief should be denied. VI. CONCLUSION For the reasons set forth above, Wilson's Motion for Post- Trial Relief should be denied. Respectfully submitted, McNEES , WALLRC,E~-.~~--~;TTR ICK t arvey ~reeae e .D. 231 2 Micha 1 R. K I.D. No. 85584 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendants, Laurence A. Hirsh and Charles F. Schubert, Jr. Dated : 10 IZ~~G - 9 - 5`~$ CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Lawrence J. Neary, Esquire Connelly, Reid, & Spade P.O. Box 963 Harrisburg, PA 17108 (Attorneys for Plaintiff) Dated: ~o~=g/9~ ~c 5 Laurence A. Hirsh and Charles F. Schubert, Jr. ~~8~ ~ r CERTIFICATE AND TRANSMITTAL OF RECORD UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (c To the Prothonotary of the Appellate Court to which the within matter has been appealed: SUPERIOR ~IRP OF PII~Il~SYLVANIA THE UNDERSIGNED, Prothonotary of the Court of Common Pleas o.f QI~~ERLAND County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Case No. 94-1070 Civil Term; No. 424 HBG 1997 FRANK WILSON VS. WEINSTEIN-HIRSH APPRAISAL GROUP, AND COMMERCE BANK~HBG The documents comprising the record have been numbered from No. 1 to No. 579 and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmi~`ted to the appellate court is June 24th, 1997 . (Seal of Court) -~/ V.F%C.~~1.1~.crr~- Prothonotary An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. RECORD RECEIVED: Date (signature & title) i • CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. Susan L. Rice Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. D t ~~ r c} _. ~-~ ~ ~~ -„ -n ~ : -n ~ i't'1 C~ ~ (:: ~._J J izl _ _ --~t