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HomeMy WebLinkAbout2004-628 Civil ALAN GOBAT and AMY GOBAT, : IN THE COURT OF COMMON PLEAS OF Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 04-628 CIVIL CLAYTON AND BRANDIE : BONAWITZ, : Defendants : : vs. : : ADAM L. STOTSKY, JR., t/d/b/a : A. L. FENCE COMPANY, : Additional Defendant : IN RE: NONJURY TRIAL MEMORANDUM AND VERDICT After lengthy consideration of the testimony adduced at our recent nonjury trial, and after reviewing the pleadings, we reach a verdict and in that regard provide a brief word of explanation. In this case, the Gobats agreed to purchase a dwelling home located at 292 Liberty Drive, Shippensburg, Pennsylvania, from the defendants, Clayton and Brandie Bonawitz. Prior to the settlement, the plaintiffs noticed that a portion of the fence around the backyard of the property was leaning. At the time of settlement, the parties entered into an escrow agreement setting aside the sum of $500.00 from the settlement proceeds for the purpose of repairing a “leaning fence post at rear yard.” The escrow agreement went on to provide that in the event that $500.00 was not sufficient, the Bonawitzes will “on demand deposit the additional amount necessary.” The sole count in the complaint, one for breach of contract, alleges that the defendants violated the escrow agreement “by refusing to deposit additional moneys into the escrow account to cover the cost of repairs of the fence.” Comp., para. 10. The complaint concludes with an allegation that, because of this breach of the contract, “the aforesaid fence is currently in disrepair and needs to NO. 04-628 CIVIL be replaced by a new fence. Nowhere in the course of this litigation, however, have the plaintiffs established a prior demand for the “costs of repair” of the fence. Instead, the plaintiffs have submitted estimates from contractors who have declined to make repairs and, instead, have submitted bids for the total replacement of the fence. The parties advance a number of legal theories which they would have the court apply to this case. Their arguments, in some cases, are the legal equivalent of trying to fit square pegs into round holes. The plaintiffs, for example, cite the well-established principle that where there has been a defective performance of a contract, the measure of damages is the cost of correcting the defects by another contractor and, where repair is not possible, the correct measure of damages is the cost of replacement. Citing Fetzer v. Vishneski, 582 A.2d 23 (Pa.Super. 1990). In this case, however, the contract between the Gobats and Bonawitz was not for the construction of a fence. Had it been, the cost of replacing the defective fence may well have been the proper measure of damages. The contract, though, was for the repair of the existing fence, something which the plaintiffs now contend was not possible. However, where parties make a contract and the performance of the contract becomes impossible, the remedy is rescission of the contract. See In re Bosick, 759 A.2d 417 (Pa.Cmwlth. 2000). Here, the plaintiffs have not sought to rescind the real estate sale, but rather seek to replace the fence. We note also that merely because various contractors have refused to submit a cost of repair does not mean that repair is impossible. The contractors have simply indicated that they would rather install a new fence than repair the existing one. Despite the absence of direct testimony, we are satisfied that the cost of repair would be at least $500.00. No one has come forward with a figure, however, indicating that it would be any more than that. Accordingly, we will direct judgment in favor of the Gobats and against Bonawitz for the amount of the escrow of 2 NO. 04-628 CIVIL $500.00. Under the joinder theories advanced by Bonawitz, Stotsky cannot be liable to Bonawitz in an amount greater than Bonawitz is liable to Gobat. By the same token, it is clear that repair was necessitated to the fence by its earlier improper installation; specifically, there 1 was not nearly enough concrete applied to the post holes to support the fence. VERDICT st AND NOW, this 21 day of August, 2007, the court finds in favor of the plaintiffs and against the defendants in the amount of $500.00 (which may be satisfied by the payment of sums held in escrow). The court finds in favor of the defendants and against the additional defendant in the amount of $500.00. BY THE COURT, _______________________________ Kevin A. Hess, J. Michael J. O’Connor, Esquire For the Plaintiffs Paul Orr, Esquire For the Defendants William P. Douglas, Esquire For the Additional Defendant Court Administrator 1 In a pleading filed by Stotsky, he indicates that as late as July of 2003 he offered to perform repairs on the fence and provide an inspection in exchange for a joint release among the parties. If such an offer was made, we were never told why it was not accepted. 3 ALAN GOBAT and AMY GOBAT, : IN THE COURT OF COMMON PLEAS OF Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 04-628 CIVIL CLAYTON AND BRANDIE : BONAWITZ, : Defendants : : vs. : : ADAM L. STOTSKY, JR., t/d/b/a : A. L. FENCE COMPANY, : Additional Defendant : IN RE: NONJURY TRIAL VERDICT st AND NOW, this 21 day of August, 2007, the court finds in favor of the plaintiffs and against the defendants in the amount of $500.00 (which may be satisfied by the payment of sums held in escrow). The court finds in favor of the defendants and against the additional defendant in the amount of $500.00. BY THE COURT, _______________________________ Kevin A. Hess, J. Michael J. O’Connor, Esquire For the Plaintiffs Paul Orr, Esquire For the Defendants William P. Douglas, Esquire For the Additional Defendant Court Administrator