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filed: December 4, 1986.


Appeal from the Order and Judgment of the Court of Common Pleas of Philadelphia County, Civil at No. 4603 October Term, 1980.


Fred Lowenschuss, Philadelphia, for appellants.

Barry J. Goldstein, Philadelphia, for appellees.

Wickersham, Wieand and Popovich, JJ.

Author: Popovich

[ 359 Pa. Super. Page 94]

This is an appeal from an order of the trial court which granted judgment notwithstanding the verdict in favor of appellees-defendants, Harvey Blank and Joel Cassway, who sold a townhouse to appellants-plaintiffs, Warren Cohen and his spouse, Adele Cohen. We must reverse and remand for the reasons herein stated.

Appellants raise the following issues: (1) whether the trial court erred in entering judgment notwithstanding the verdict because the appellants presented documentary and testimonial evidence that they reasonably relied upon appellees' representations that the parking space was included in the sale of the property, the appellees' own real estate agent believed and intended that the parking space was to be conveyed, and appellees never informed the appellants that the parking space would not be included as advertised; (2) whether the trial court improperly invaded the province of the jury in granting judgment notwithstanding the verdict for the reasons that the jury's verdict was "against the weight and sufficiency of the evidence"; and (3) whether appellants should have been entitled to receive prejudgment interest, additional damages, and counsel fees because the evidence established that appellees placed a specific value on the parking space in question and because appellees

[ 359 Pa. Super. Page 95]

    fraudulently failed to convey the space to appellants on a specific date.

The record establishes the following set of facts which were summarized by the trial court:

Mr. and Mrs. Cohen saw an advertisement in the newspaper offering 2334 Perot Street with a parking space for sale for $130,000. (N.T. p. 69) The house fronts on Perot Street and goes straight through to Olive Street. The parking lot was not contiguous to the house and has an Olive Street address. The Cohens went to see Mrs. McCullum, employed by Bulman Realty, the brokers for the property. Mrs. McCullum told the Cohens that parking was included. (N.T. p. 92) The plaintiffs' first offer was for $100,000 and their second offer of $110,000 was accepted. (N.T. p. 75).

The agreement of sale only listed the street address for the house. The agreement of sale was drawn up by the broker, Mrs. McCullum. (N.T. Day II, p. 52) The agreement of sale was reviewed by the Cohens' attorney. (N.T. p. 89) No plot plan or drawing was attached to the agreement of sale. Mrs. Cohen discussed the agreement of sale for one hour with her attorney and told him that parking was included in the purchase. (N.T. p. 89) The attorney for the Cohens never inspected or visited the property. (N.T. p. 92)

There was no testimony that Mrs. Cohen ever discussed what was included in the purchase with the seller. She did testify that parking was only discussed with the broker. (N.T., Day II, p. 92)

Mr. Cassway, representing the sellers, the Perot Street Group (a partnership between Joel Cassway, Harvey Blank, Robert Cassway, and Frederick Albert), used his title insurance company to order the real estate description, which he gave to the buyers. (N.T. p. 165) The Cohens met with their attorney and he drew up the deed to the property. (N.T. p. 93) The attorney for the Cohens used the information provided by the title insurance company to prepare the deed. (N.T. p. 13) The deed did not contain either a separate address for the parking space nor did it contain

[ 359 Pa. Super. Page 96]

    more than one set of metes and bounds for the property. (N.T. p. 165)

The settlement took place on July 31, 1980 and lasted for approximately five hours. (N.T. p. 134) Although many things were discussed at settlement (i.e. repairs to be made and completed, etc.) there was no testimony from either the buyers or the sellers that parking was ever discussed at the settlement table.

The seller testified that when he signed the agreement of sale he believed that he was not selling the parking. (N.T. p. 148, 150) The seller explained that when the first townhouse of these three sold, the agreement of sale for that property included specific language that two parking spaces were included. (N.T., Day II, p. 163, 181) As a result, the seller believed that because no parking space was mentioned in this agreement, that it was not included. In addition, the seller and the broker both testified that they never discussed whether parking was included in this transaction. (N.T., Day III, p. 54)

This mix-up with the parking space was discovered approximately two months after the sale of 2334 Perot Street. Mrs. McCullum testified that during a conversation with Mr. Cassway about the sale of the remaining house that he said, "I can't believe that we can't sell this house with all these things and two parking spaces." (N.T., Day III, p. 61) Mrs. McCullum said, "You don't have two parking spaces . . . you really have one parking space." (N.T., Day II, p. 61) To that Mr. Cassway responded, "The Cohens didn't buy the parking space." (N.T., Day III, p. 61) They then had a long discussion about the problem and what each believed about the parking space.

In summary, the buyer and the broker thought the parking space was included but the seller did not think parking was sold in the transaction. The jury listened to the testimony about the transaction and decided that the seller was aware that the buyers expected to get the parking space.

Subsequently, the jury returned a verdict in favor of appellants in the amount of $10,000. The trial court granted

[ 359 Pa. Super. Page 97]

    judgment notwithstanding the verdict for the reason that "there was no evidence presented that the seller Cassway had actual knowledge that the buyers expected to get the parking space." Trial Court's Opinion at 5. This appeal followed.

The standard of review which must be applied has been set forth in the following manner:

Our standard of review is settled. A judgment n.o.v. should be entered only in a clear case, and any doubts should be resolved in favor of the verdict. Steward v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970). In considering a motion for judgment n.o.v., the evidence, together with all reasonable inferences therefrom, is considered in the light most ...

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