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HomeMy WebLinkAbout2005-6008 Civil MICHAEL J. CASSIDY AND : IN THE COURT OF COMMON PLEAS OF JULIE A. CASSIDY, t/d/b/a : CUMBERLAND COUNTY, PENNSYLVANIA G & C ASSOCIATES, : PLAINTIFFS : : V. : : CHRISTOPHER YURKOVICH AND : SHELLEY YURKOVICH, : DEFENDANTS : 05-6008 CIVIL TERM IN RE: PRELIMINARY OBJECTION TO PLAINTIFFS’ COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., February 21, 2005:-- April 15, 2005 On , G & C Associates entered into a real estate contract with Christopher and Shelley Yurkovich. The twenty page document was a “Standard Agreement for the Sale of Real Estate” used by members of the Pennsylvania Association of Realtors. The contract provided that defendants purchase a home constructed by plaintiffs in Mountain View Estates, for $239,000. The sum of $2,000 was to be paid within five days of the execution of the Agreement, and the balance of June 1, 2005 the purchase price at settlement on June 30, 2005. On , the parties signed an addendum for another $6,020 of work on the home, increasing the final sale price to $245,020. On December 12, 2005, G & C Associates entered this suit, alleging that on June 24, 2005 , defendants unilaterally terminated the contract and demanded a return June 29, 2005 of $2,000 held in escrow by a realtor. On , defendants signed an “Agreement of Sale Release,” terminating the contract and directing the realtor to return $2,000 to them. There was no settlement as scheduled on June 30, 2005. Plaintiffs 05-6008 CIVIL TERM then placed the property on the market, and it was sold on August 23, 2005, for $245,000. Plaintiffs seek damages of $7,183.08 for the loss incurred for the amount received in the new sale compared to their contract with defendants, $746.10 for additional interest on the construction mortgage, $500 for an extra expense in driveway construction, and $139.88 for additional water and sewer utility service to the property. Defendants filed a preliminary objection to the complaint in the form of a demurrer, which was briefed and argued on February 15, 2006. They aver that plaintiffs have failed “to state a cause of action upon which relief may be granted,” because a liquidated damage clause in the contract limits plaintiffs “to recovering the sum of $2,000.00.” Paragraph 27 in the Agreement provides: DEFAULT(1-02) (A) Seller has the option of retaining all sums paid by Buyer, including the deposit monies, should Buyer: 1. Fail to make any additional payments as specified in paragraph 3; OR 2. Furnish false or incomplete information to Seller, Brokers, or the mortgage lender, if any, concerning Buyer’s legal or failure to obtain the approval of a mortgage loan commitment; OR 3. Violate or fail to fulfill and perform any other terms or conditions of this Agreement. Unless otherwise checked in paragraph 27 (C), (B) Seller may elect to retain those sums paid by Buyer, including deposit monies, in one of the following manners: 1. On account of purchase price, OR 2. As monies to be applied to Seller’s damages, OR 3. As liquidated damages for such breach. (C) Seller is limited to retaining sums paid by Buyer, including deposit monies, as liquidated damages. -2- 05-6008 CIVIL TERM (D) If Seller retains all sums paid by Buyer, including deposit monies, as liquidated damages pursuant to paragraph 27 (B) or (C), Buyer and Seller will be released from further liability or obligation and this 1 Agreement will be VOID. Plaintiffs maintain that the liquidated damage clause does not limit the damages they may recover against defendants because they have not elected to accept that option, defendants have voided the contract by repudiating it in its entirety, and a limitation on damages is unconscionable and unenforceable on the facts in this case. In ruling on a demurrer, it must be determined whether, on the facts alleged in the Hawks by Hawks complaint, the law states with certainty that no recovery is possible. v. Livermore, 157 Pa. Commw. 243 (1993). We accept as true all well-pled allegations of material fact and inferences reasonably deducible therefrom, and resolve any doubts Id. in favor of the nonmoving party. Defendants do not maintain that plaintiffs have not stated a cause of action. Rather, they maintain that plaintiffs’ claim for damages is limited to $2,000. There is no legal basis for the entry of a demurrer as any issue of damages will be resolved by the trier of fact. ORDER OF COURT AND NOW, this day of February, 2006, the preliminary objection of IS DENIED. defendants to plaintiffs’ complaint, 1 The Yurkoviches have filed a complaint against plaintiffs herein, claiming that plaintiffs breached the Agreement of Sale dated April 15, 2005. They seek a return of the $2,000 they deposited pursuant to that Agreement. -3- 05-6008 CIVIL TERM By the Court, Edgar B. Bayley, J. Sally Winder, Esquire For Plaintiffs E. Ralph Godfrey, Esquire For Defendants :sal -4- MICHAEL J. CASSIDY AND : IN THE COURT OF COMMON PLEAS OF JULIE A. CASSIDY, t/d/b/a : CUMBERLAND COUNTY, PENNSYLVANIA G & C ASSOCIATES, : PLAINTIFFS : : V. : : CHRISTOPHER YURKOVICH AND : SHELLEY YURKOVICH, : DEFENDANTS : 05-6008 CIVIL TERM IN RE: PRELIMINARY OBJECTION TO PLAINTIFFS’ COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this day of February, 2006, the preliminary objection of IS DENIED. defendants to plaintiffs’ complaint, By the Court, Edgar B. Bayley, J. Sally Winder, Esquire For Plaintiffs E. Ralph Godfrey, Esquire For Defendants :sal