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HomeMy WebLinkAbout02-1221 EquityGLENN HERMAN, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PAUL E. DICK, DEFENDANT Bayley, J., June 3, 2003:-- 02-1221 EQUITY TERM IN RE: ADJUDICATION IN EQUITY OPINION AND DECREE NISI On March 12, 2002, plaintiff, Glenn Herman, instituted this complaint in equity against defendant, Paul E. Dick. Plaintiff alleges that he entered into a written contract dated June 5, 2001 to purchase real estate from defendant, and that defendant breached the agreement by refusing to transfer the property to him. Plaintiff seeks specific performance of the contract of sale and collateral damages for defendant's breach. An adjudication was conducted on May 15, 2003. The issues have been briefed and are ready for decision. FINDINGS OF FACT Paul Dick, age 84, lives in Carlisle. He owns an 81.24 acre farm at 671 Old Mill Road, Lower Frankford Township, Cumberland County. There is a farmhouse on the property in which his son Richard Dick has lived for about ten years. Richard Dick has used the property as a crop farm for about twenty years. He grows mostly hay which he uses for raising beef cattle on the property. About nine years ago, Richard Dick 02-1221 EQUITY TERM built a sturdy fence running generally east and west across the width of the property to the south of where the farmhouse, a barn and a pasture is located. The pasture provides access to a stream. Dick uses the pasture to graze his cattle. At times he uses the stream to water them. In the early part of 2001, Paul Dick contacted Peter Kafkales, a real estate agent for Jack Gaughen Realtor, ERA. Dick told Kafkales that he wanted to sell the land on his farm beyond the fence and keep the remainder. Dick wanted the remainder so his son would be able to continue to live in the farmhouse, use the barn, and raise cattle on the land retained. When the property was sold, Richard Dick could rent other land on which to grow hay. Peter Kafkales visited the farm and Paul Dick showed him what he wanted to sell. Kafkales knew that the pasture with access to the stream was to be retained as part of the land around the house and barn, and that the fence was to be the line of demarcation for a subdivision of the property. There is a mobile home that Dick rents to a woman on the south end of the farm. That part of the farm was to be sold but Dick wanted to protect the current lessee indefinitely. Kafkales drew up a listing agreement for 671 Old Mill Road, Newville, Lower Frankford Township, Cumberland County at $250,000, which Paul Dick signed. Kafkales put the property on the Multi-List using a figure of "70 plus acres" to be sold out of 80 acres. The acreage was listed as "70 plus" by "eyeballing" the property. Glenn Herman saw a sale sign on the farm and contacted William Myers, an agent for Jack Gaughen Realty, ERA. Myers never met Paul Dick. Myers, Herman, and -2- 02-1221 EQUITY TERM Kafkales went together to see the farm. Herman liked the property. He wanted to move from New Jersey, build a house on the property in which he would live with his mother, and build two houses on two acre lots which he would sell to raise money to put toward his own house. Herman made an offer and Dick made a counteroffer. Herman increased his offer which Dick accepted and which resulted in his execution of a written agreement of sale dated June 5, 2001. William Myers drafted that sales contract which sets forth in part: 1. "70 + Acres of 671 Old Mill Road." (Emphasis added.) 2. "Purchase price $180,000." 3. "Settlement to be made on or before August 8, 2001, or date of final subdivision approval." 4. "Since subdivision is incomplete, offer is $2,571.43 per acre and final price will be based on # of acres times the $2,571.43. Only subdivision will be approx. 10 Acre lot containing house and barn, as per seller's request." (Emphasis added.) 5. "Buyer agrees to continue current land rental agreement with owners of mobile home on property." Herman paid a deposit of $2,500 on the contract. Larry Neidlinger, a surveyor, was contacted by Paul Dick's attorney to prepare a land subdivision needed for the sale to be completed. Neidlinger talked to Peter Kafkales, but he never talked to Paul Dick or saw the agreement of sale. Neidlinger prepared a sketch to be utilized by Dick -3- 02-1221 EQUITY TERM and Herman to create some parameters to help them determine where the dividing lines would be located so he could then prepare a subdivision to be submitted to Lower Frankford Township.~ Neidlinger met Herman who told him that he wanted to subdivide the land on which the mobile home was located. Herman retained Neidlinger for that purpose and also had him identify an area on the sketch that approximated the location of a house so that the land could be probed to determine if it was adequate for sewage disposable. Herman told Neidlinger that he wanted his dividing line with Dick to be at least in a tree line that is closer to Dick's house and barn than the fence so that he could be assured of continued visual protection from those buildings. Neidlinger did not walk into the woods so he did not know that the fence crossed the width of the property. On the sketch, Neidlinger drew a line through the woods, not along the fence, and continued it east. The line then goes through the fence and through the woodland that is south of the pasture? Neidlinger also drew a line just east of the house and barn enclosing approximately ten acres? The road frontage is to the west. The pasture and part of the woodland to the east as enclosed on the sketch is approximately seven acres.4 Neidlinger estimated the acreage in Tract A and Tract B because the woodland Defense Exhibit No. 1, a copy of which is attached to this opinion. The fence is only depicted on the western side of the property. Tract A on the sketch. Tract B on the sketch. -4- 02-1221 EQUITY TERM and marshy areas of the typography make it extremely difficult, even with his expertise, to accurately determine the amount of the acreage. THE ISSUES Plaintiff maintains that defendant is contractually obligated to convey his farm to him except for that area designed as Tract A on the Neidlinger sketch consistent with the details to be drawn on a final subdivision plan. Alternatively, plaintiff maintains that defendant is contractually obligated to convey his farm to him except for that area north of the fence. Defendant maintains that plaintiff is not entitled to a decree of specific performance. The issues are whether plaintiff is entitled to a decree of specific performance, and if so whether he is entitled to any collateral damages. LEGAL PRINCIPLES In Yinger v. Springer, 452 Pa. (5(5 (1973), a cause of action in equity for specific performance was based on a written sales agreement that described "the property known as R D 1 New Cumberland Jacob Springer's 80 acres more or less wich [sic] will exclude 7 acres of the $7 acres more or less." Citing Suchan v. Swope, 357 Pa. 16 (1947), the Supreme Court of Pennsylvania noted: Parol evidence to describe the land intended to be sold is one thing, and parol evidence to apply a written description to land is another and very different thing, and for that purpose is admissible. The Court concluded: In the instant case we must deal with a parcel which can be defined algebraically as "my farm minus X" where the parcel -5- 02-1221 EQUITY TERM constituting "my farm" is given a more complete description than was given in Suchan and the parcel equal to "X" is defined only as a parcel equal to "7 acres" but which parcel appellant alleges is the subject of a sales agreement between Yinger and another buyer. Just as parol evidence is admissible to show that the description of the whole parcel is sufficiently definite under the statute, so parol evidence is admissible to show that the description of the parcel to be subtracted from the whole parcel is sufficiently definite under the statute. In Turner v. Hostetler, 359 Pa. Super. 167 (1986), a cause of action in equity for specific performance was based on a written contract that provided for the sale of a surveyed two acre tract and an option to purchase eight additional acres. The contract provided that "[t]he said eight acres shall be contiguous to and shall lie generally south and west of the two acre parcel. The exact boundary lines of the said eight acres shall be determined by mutual agreement of the parties." The purchasers took possession of the two acre tract but when a dispute arose with respect to the eight additional acres the purchasers brought an action in equity for specific performance of the contract. Reviewing the relevant decisions, the Superior Court noted: [w]here, from the face of the contract, it appears that a certain or specific tract was intended to be conveyed, but its description is ambiguous due to its wording, parol evidence will be admissible to allow a more precise description to be made, and specific performance will be a proper remedy. The trial judge allowed the introduction of conflicting parol testimony: Appellees' testified that, after some discussion, appellant's agreed to sell appellees 10 acres. Appellees further testified that the contract was drawn as it was to utilize the two acre survey -6- 02-1221 EQUITY TERM which had already been completed; and that the so-called eight acre "option" was an extension of the two acre tract as defined by natural borders, such as fences, tree lines and the like. Appellees also testified that although some concern arose over the wording in the memorandum when it was presented to them, all the parties were in a hurry to close the deal and they chose not to have it redrafted, as it had taken several weeks to get the draft in question from Mr. Ogburn. According to appellees, in September, 1980, when the first $2,000 payment became due, Mr. Turner and Mr. Hostetler "walked the lines" of the eight acres to conclusively establish its borders. Appellants, Hostetlers, testified that the initial agreement was only firm on the two acres but that the Turners had desired an opportunity to purchase more if they later desired, hence the option was included. Hostetlers also testified that, although several proposals and counter-proposals were made regarding the borders of the eight acre tract, none were ever mutually agreed to. The trial court found appellees' testimony more credible and issued a decree nisi for the specific performance of the contract, setting the boundaries as per the testimony of appellees. The Superior Court of Pennsylvania affirmed, concluding: The trial judge found that the parties did subsequently determine the boundaries of the eight acres in question. At that time, giving effect to that factual finding, the obligation arose to convey the tract, as set by the parties, upon timely payment of the sales price which has been paid in full. Appellants' failure to convey resulted in the bringing of an action for specific performance and, considering the trial judge's finding, he was correct in ordering the tract to be conveyed. DISCUSSION AND CONCLUSIONS This case involves a contract for the sale of a specific tract but its description is ambiguous. Thus parol evidence was properly admitted, without -7- 02-1221 EQUITY TERM objection by either party, to determine if possible a description to the land defendant contracted to sell to plaintiff. The evidence is that Paul Dick contacted Peter Kafkales in the early part of 2001 to sell that part of his farm south of the established fence, with the current lessee of the mobile home at the southern end of the property to be protected indefinitely. Kafkales clearly understood what was to be sold, and it was on that basis that he took the listing for Jack Gaughen Realty, ERA. Dick's intent is confirmed by his son Richard that the crop portion of the farm would be sold which would allow him to continue to live in the farmhouse and utilize the barn and the surrounding land that includes the pasture he needs to raise cattle. The dispute as to what land is included in the agreement of sale dated June 5, 2001, which was drafted by William Myers who never met Paul Dick, is caused by the language used in the sales contract: "70 + acres of 671 Old Mill Road - Only subdivision will be approx. 10 Acre lot contain house and barn, as per seller's request." (Emphasis added.) Paul Dick never made any "request." He listed for sale and contracted to sell only that part of his farm south of the fence. The amount of acreage to be sold, described in the contract as 70 acres plus or minus, was and still is unknown because the typography of the property makes it extremely difficult to estimate the acreage being retained. That is why the sales price is $2,571.43 per acre rather than the set amount. Based on our findings of fact, and pursuant to the principles set forth in -8- 02-1221 EQUITY TERM Yinger v. Springer, supra and Turner v. Hostetler, supra, we conclude that plaintiff is entitled to specific performance of the written contract of sale dated June 5, 2001, under the terms and conditions therein, for that part of defendant's farm south of the established fence. That is what defendant contracted to sell and plaintiff contracted to buy? Plaintiff seeks an award of collateral damages as pleaded in his complaint of any profit he may have earned from the sale of the lots he planned to subdivide, his $2,500 down payment, money he owes to Larry Neidlinger, his attorney fees and his costs of suit. In Rusiski v. Pribonic, 511 Pa. 383 (1986), the Supreme Court of Pennsylvania stated: consequential damages may be awarded as collateral relief to a decree of specific performance, since the power of a chancellor extends to shaping and rendering a decree which accords with the equities in the case. Sigal v. Manufacturer's Light & Heat Co., 450 Pa. 228, 299 A.2d 646 (1973); Township of Salisbury v. Vito, 446 Pa. 200, 285 A.2d 529 (1971 ); Dombrowski v. City of Philadelphia, 431 Pa. 199, 245 A.2d 238 (1968). However, these damages must be such as would naturally and ordinarily follow from the breach, must have been reasonably foreseeable and within the contemplation of the parties at the time they made the contract and must be capable of being proved with reasonable certainty. Keystone Diesel Engine Company v. Irvin, 411 Pa. 222, 191 A.2d 376 (1963); Adams v. Speckman, 385 Pa. 308, 122 A.2d 685 (1956); Taylor V. Kaufhold, 368 Pa. 538, 84 A.2d 347 (1951). 5 This means that Dick must subdivide his property so that he can present a deed to plaintiff in conformity with our decree. -9- 02-1221 EQUITY TERM Before this dispute arose, plaintiff asked Larry Neidlinger whether he could further subdivide two building lots on the subdivision plan to be submitted to Lower Frankford Township for the purchase from Dick. Neidlinger advised him, and plaintiff accepted the advice, not to complicate the Dick subdivision but to wait until his purchase of the land was completed. Our remedy of specific performance will allow plaintiff to later seek a subdivision of lots on the property he is purchasing. He has not proven any damages with reasonable certainty. Furthermore, such damages would not naturally follow from Dick's refusal to transfer the land plaintiff demanded, and were not foreseeable and within the contemplation of the parties at the time they made their contract. Plaintiff's $2,500 down payment will go toward the final purchase price so he has not lost that money. We will not award plaintiff counsel fees. He sought to enforce specific performance of that part of the farm designated as Tract B on the Neidlinger sketch with the dividing line for Tract A in the woods and north of the fence. He is not entitled to that relief to which Dick has successfully defended. Equity warrants that each party pay their own attorney fees and costs in bringing their dispute to resolution. DECREE NI$1 AND NOW, this day of June, 2003, IT I$ DECREED: (1) Defendant, Paul E. Dick, shall convey to plaintiff, Glenn Herman, that part of his farm at 671 Old Mill Road, Lower Frankford Township, Cumberland County, south -10- 02-1221 EQUITY TERM of the established fence, under the terms and conditions in the contract of sale dated June 5, 2001. (2) Plaintiff's claim for collateral damages, IS DENIED. (3) Each party shall pay their own attorney fees and costs. By the Court, James M. Robinson, Esquire For Plaintiff Douglas G. Miller, Esquire For Defendant :sal Edgar B. Bayley, J. -11-