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HomeMy WebLinkAbout01-3170 CivilFRED J. WEBER, Plaintiff V. LEROY E. ELLERMAN and: DONNA L. ELLERMAN, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-3170 CIVIL TERM IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS BEFORE BAYLEY, GUIDO, JJ. OPINION AND ORDER OF COURT Currently before us are plaintiff' s preliminary obj ection's in the nature of a demurrer to defendants'counterclaim For the reasons hereinafter stated, they will be denied in part and granted in part. FACTUAL BACKGROUND On January 19, 2001, the parties entered into a written agreement whereby plaintiff agreed to buy the defendants' residence. The agreement required a deposit of $25,000, payable $15,000 upon execution and another $10,000 by March 8, 2001.~ Settlement was to occur on or before July 3, 2001. On April 3,2001, plaintiff advised defendants that he was not going to buy the property because of certain defects that he alleged had not been disclosed as required by the Real Estate Sellers Disclosure Act of 1996.2 Plaintiff filed this suit on June 20, 2001, asking that the contract be rescinded and that defendants be required to return his $25,000 deposit. The entire deposit was paid as required. 68 P.S. § 1021 et seq. NO. 98-2534 CIVIL TERM Defendants filed a counterclaim in which they allege that plaintiff had no grounds to be excused from performing the contract. They have made a claim for damages arising out of the alleged breach of the contract. Among their claims are certain items of consequential damages allegedly incurred because they left their jobs and moved to Alaska in reliance upon the agreement.3 DISCUSSION The standard to be applied to preliminary objections in the nature of a demurrer was succinctly stated by our Supreme Court as follows: A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader' s right to relief. For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, and every inference fairly deducible from those facts. Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. (citations omitted). The County of Allegheny v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985). Applying the above standard to the case at bar, the counterclaim clearly states a cause of action for breach of contract. However, the demurrer cannot be overruled in its entirety. Paragraph 40 of the counterclaim provides as follows: As a result of the Plaintiff' s breach, the Defendants have suffered, inter alia, the following damages: a. travel expenses to Alaska in January 2001 including airfare, car rental, hotel, and lost time from work for both Mr. and Mrs. Ellerman; b. storage fees for personal belongings from February 2001 through June 2001; c. expenses for public sale of personal and household items; 3 See paragraph 39 of the defendants' counterclaim. NO. 98-2534 CIVIL TERM d. expenses for moving from Pennsylvania to Alaska in March 2001 including rental of camper expenses, insurance, fuel, lodging tolls, and cell phone charges; e. lost wages for Mr. Ellerman from February 26, 2001, through June 15, 2001; f. lost wages for Mrs. Ellerman from March 9 through May 16, 2001; g. expenses incurred while living in Alaska including drivers license and registration fees, homeowners insurance, and utility hook-up charges: h. expenses of Mrs. Ellerman's return to Pennsylvania and Mr. Ellerman's return to Pennsylvania including sale of their home in Alaska, airline tickets and other travel expenses including fuel and lodging; i. expenses since Defendants return to Pennsylvania including telephone charges, utility hook-up charges, drivers license and registration fees; j. additional expenses including, inter alia, federal tax on liquidating retirement benefits early. Consequential damages are recoverable for breach of contract only if the defendants can prove "the damages.., suffered were (1) such as would normally and ordinarily result from the breach, or (2) that they were reasonably foreseeable and within the contemplation of the parties at the time they made the contract, and (3) that the damages can be proven." (emphasis added). Commonwealth, Dept. of Transportation v. Cumberland Construction Company, 90 Pa. Commonwealth 273,282, 494 A.2d 520, 525 (1985), citing Taylor v. Kaufhold, 368 Pa. 538, 546, 84 A.2d 347, 351 (1951). In the instant case, lost wages and moving expenses to Alaska are not damages "such as would normally and ordinarily result from the breach." Nor can they be considered to be "reasonably foreseeable" even if they may have been "within the contemplation of the parties." Therefore, the demurrer will be sustained as to the consequential damages claimed in subparagraphs (a) through (j) of counterclaim paragraph 40. NO. 98-2534 CIVIL TERM ORDER OF COURT AND NOW, this 22ND day of FEBRUARY, 2002, Plaintiff's preliminary objections to defendants' counterclaim are sustained in part and denied in part. They are sustained insofar as the demurrer to subparagraphs (a) through (j) of counterclaim paragraph 40 is GRANTED. In all other respects they are DENIED. By the Court, John A. Abom, Esquire For the Plaintiff Mark D. Schwartz, Esquire For the Defendants :sld s/Edward E. Guido Edward E. Guido, J.