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HomeMy WebLinkAbout97-5886 equityCARRIE E. ROUSH, Plaintiff VS. MICHAEL J. JANESKO and E. JADE JANESKO, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-5886 EQUITY CIVIL ACTION- EQUITY IN RE' PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF AND PETITION TO OPEN THE TRIAL RECORD AND ADMIT NEW EVIDENCE BEFORE HESS, J. ORDER AND NOW, this day of June, 2000, the motion of the plaintiff for post-trial relief is DENIED. The plaintiff' s petition to open the trial record and admit new evidence is DENIED. BY THE COURT, Richard C. Snelbaker, Esquire William S. Daniels, Esquire For the Plaintiff Hess, J. Benjamin Warner, Esquire For the Defendants :rim CARRIE E. ROUSH, Plaintiff VS. MICHAEL J. JANESKO and E. JADE JANESKO, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-5886 EQUITY CIVIL ACTION- EQUITY IN RE: PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF AND PETITION TO OPEN THE TRIAL RECORD AND ADMIT NEW EVIDENCE BEFORE HESS, J. OPINION AND ORDER Before the court is the motion of the plaintiff for post-trial relief. Also before the court is a petition to open the trial record and to admit new evidence. This is an action seeking damages for fraud arising out of an agreement for the sale of real estate located at 3960 Enola Road in Upper Frankford Township, Cumberland County, Pennsylvania. The agreement between the parties was executed on or about July 9, 1997. The sale of the real estate was to occur on or before September 30, 1997. Because of a concern about the reservation of a right-of-way, the defendants did not meet the scheduled settlement date. On October 24, 1997, the plaintiff commenced an action in equity for specific performance. A year later, the defendants agreed to convey the subject real estate. In the meantime, however, the plaintiff learned of problems with the septic system on the property. In December of 1998, the plaintiff filed an amended complaint alleging, in addition to her count for specific performance, a count of fraud and violations of the Pennsylvania Unfair Trade Practices and Consumer 97-58-86 EQUITY Protection Law, 73 P.S. 201-1 et seq. and a request for attorneys' fees pursuant to 42 Pa.C.S. Section 2503(7). Around New Year's of 1999, the plaintiff learned that she was pregnant. The Roushes then decided to construct a modular home on land which they owned in Newville. They decided that they no longer desired to purchase the property in Upper Frankford Township and, on or about June 6, 1999, withdrew the claim for specific performance. This is, in the end, a lawsuit seeking damages in connection with the maintenance of an action in specific performance to enforce the sale of real estate which, ultimately, the plaintiff did not want to buy. The post-trial motions of the plaintiff challenge, in one form or another, the factual and legal conclusions of the court. They do not, in other words, raise evidentiary or procedural questions but rather suggest, not surprisingly, that on the same evidence the plaintiff would have reached a different conclusion. We continue, however, to believe that we were correct in concluding that the plaintiff had not proven fraud and we find it difficult to add to what has already been said. Nonetheless, we briefly revisit the issues in light of the plaintiff's arguments concerning credibility. The alleged fraudulent conduct in this case was a failure on the part of the defendants to reveal defects in the septic system of the property proposed to be purchased. First, we emphasize that we agree with the plaintiff in her general assessment of credibility in this case. Numerous and serious questions of credibility are raised in the thorough and well-written brief filed on behalf of the plaintiff. These include the reasons given for the delay of the settlement, the depth of the defendants' knowledge with respect to the permanent nature of the septic system problems, their search for a septic service which would pass the system, and their description of 97-5886 EQUITY various telephone calls between the defendants and others involved in the case. We agree, also, with the plaintiff that the counterclaim was specious. None of this alters the fact (as to which there is no dispute) that the defendants did disclose that the septic system had not passed inspection, that the septic field was clogged with roots, and that a chemical treatment was required to address the situation. The plaintiff proceeded, in the face of these warnings, to file and pursue her action in specific performance. In our initial opinion in this case we discussed at length the reasons why we do not believe the conduct of the defendants rose to the level of fraud. There is no necessity to repeat those statements here. Similarly, we dealt in our earlier opinion as to why there can be no recovery in this case under the Unfair Trade Practices and Consumer Protection Law. Again, we discern no purpose in repeating what has already been said. Finally, the plaintiff continues to contend that she is entitled to attorney's fees under 42 Pa.C.S.A. Section 2503(7) for the defendants' alleged obdurate, vexatious and dilatory conduct throughout this litigation. As observed in our earlier opinion, while the defendants zealously defended against the plaintiffs claim, they did so in a manner consistent with the Rules of Civil Procedure and did nothing to justify an award of attorney's fees against them. As noted above, the plaintiff has filed a motion to reopen the record in this case. That motion alleges that, on or about December 31, 1999, after the trial of this case, the defendants sold the subject real estate to a third party. They further aver that there had been no relaxation of regulations concerning on-site sewage disposal systems and that no repairs had been made to the system since the time of trial in this matter. We fail to discern how any of this evidence, even if true, would add to our understanding of the case. The fact that this real estate has subsequently 97-5886 EQUITY proven to be marketable seems, rather, to undermine the position taken by the plaintiff. It is true that, in accordance with Pa.R.C.P. 227.1, the court in addition to certain specific types of post- trial relief may "enter any other appropriate order." We fail to see, however, how opening the record in this case is appropriate. ORDER AND NOW, this z ~ day of June, 2000, the motion of the plaintiff for post-trial relief is DENIED. The plaintiffs petition to open the trial record and admit new evidence is DENIED. Richard C. Snelbaker, Esquire William S. Daniels, Esquire For the Plaintiff Benjamin Warner, Esquire For the Defendants BY THE COURT, Kev~ ~~ess, J. :rlm