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08/14/97 MICHAEL SEWAK AND PATRICIA SEWAK v.

August 14, 1997

MICHAEL SEWAK AND PATRICIA SEWAK, APPELLEES
v.
CHARLES LOCKHART AND HOPE LOCKHART, APPELLANTS; MICHAEL SEWAK AND PATRICIA SEWAK, APPELLANTS V. CHARLES J. LOCKHART AND HOPE LOCKHART, APPELLEES



Appeals from the Judgment of the Court of Common Pleas of Bucks County, Civil Division, at No. 94-004799-23-1. Before LAWLER, J.

Before: Cavanaugh, Hudock and Hester, JJ. Opinion BY Hudock, J.

The opinion of the court was delivered by: Hudock

OPINION BY HUDOCK, J.:

Filed August 14, 1997

In these cross-appeals both parties allege error with regard to the judgment entered in favor of Michael and Patricia Sewak (Buyers) and against Charles J. and Hope Lockhart (Sellers) in a fraud action involving the sale of a home. Sellers ask this Court to reverse the trial court's denial of their motions for judgment notwithstanding the verdict and new trial, and Buyers ask this Court to vacate the trial court's order limiting the amount of attorney's fees awarded to them. We affirm.

The facts and procedural history may be summarized as follows: The case arises from the sale of Sellers' house at 4225 Remo Crescent, Bensalem, Bucks County, to Buyers. Several years prior to the sale of the house, Sellers had paid a contractor $12,000 cash to renovate their basement. As part of these renovations, a steel lally column, which was the main structural support for the house, was removed. Shortly after Buyers moved into the house, they noticed that the kitchen floor was uneven. Additionally, doors in the house were out of align, and the plaster on the walls was cracking. Months later, they observed a noticeable sag on the first and second floors. They hired a contractor to determine the cause. After viewing a neighbor's basement and removing part of Buyers' basement ceiling and wall coverings, the contractor determined that the sagging was caused by the removal of the lally column. Ultimately, Buyers discovered an illegal temporary jack behind wires in the heater closet which apparently was used to replace the needed structural support. The contractor also determined that the removal of the lally column would have eventually resulted in the collapse of the house.

Buyers filed a lawsuit on June 23, 1994, alleging three causes of action: 1) fraud as a result of Sellers' failure to disclose the removal of the lally column; 2) breach of contract for Sellers' failure to complete the remodeling of the basement in a workmanlike manner; and 3) violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 P.S. sections 201-1, et seq., due to Sellers' failure to disclose the removal of the lally column. On October 18, 1995, an arbitration award was entered in favor of Buyers in the sum of $6,757.00. Sellers appealed that award to the trial court and the matter was scheduled for trial before a jury. Prior to trial, the court dismissed Buyers' breach of contract claim. On May 29, 1996, the jury returned a verdict in favor of Buyers, specifically finding that: 1) Sellers concealed or failed to disclose a hidden, latent defect in the property they sold to Buyers; 2) the defect was serious and dangerous such that it presented a hazard to the health and safety of the occupiers of the property so as to pose a serious risk of harm to the occupiers or to the structure of the property; 3) Sellers' acts in concealing or failing to disclose the defect resulted in ascertainable loss or damage to Buyers; 4) Buyers were entitled to $5,000.00 in damages; and 5) Sellers engaged in fraudulent conduct which either created a likelihood of confusion or misunderstanding as to the sale of their property to Buyers or represented that their property was of a particular standard, quality or grade. The jury also recommended that the trial court award, under the UTPCPL, additional damages to a maximum of three times the actual damages sustained and recommended the amount should be $15,000.00

On July 3, 1996, the trial court heard oral argument from counsel on the questions of whether it should award attorney's fees and whether it should adopt the jury's recommendation to award treble damages. By order dated August 19, 1996, the trial court adopted the jury's recommendation and awarded Buyers treble damages in the amount of $15,000.00. The court also awarded attorney's fees in the amount of $5,000.00, for a total award of $20,000.00. Post-trial motions filed by both parties were denied by the trial court and judgment was entered on the docket.

Sellers phrase their first issue on appeal as follows:

A. DID THE TRIAL COURT ERR IN FAILING TO GRANT [SELLERS'] MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL WHERE THE CLEARLY FAILED TO MEET THEIR REQUISITE BURDEN OF PROOF, CLEAR AND CONVINCING EVIDENCE?

Sellers' Brief at 2. Although the remedy for failure to sustain the burden of proof is judgment notwithstanding the verdict--not the grant of a new trial--we will assume that Buyers allege in the alternative that, even if Buyers presented a prima facie case of fraud, given the testimony and other evidence presented at trial, the jury's verdict was against the weight of the evidence. We will consider each claim separately.

Sellers first claim judgment notwithstanding the verdict should have been granted in their favor because Buyers failed to prove one or more of the elements of fraud by clear and convincing evidence. We do not agree. When reviewing an order denying a motion for judgment notwithstanding the verdict, we must consider all the evidence received, including evidence improperly admitted, and decide "whether there was sufficient competent evidence to sustain the verdict." Pirozzi v. Penske Olds-Cadillac-GMC Inc., 413 Pa. Super. 308, , 605 A.2d 373, 375 (1992). It is not within this Court's province to weigh the evidence or to render a judgment as to credibility of evidence. Ingrassia Construction Company, Inc. v. Walsh, 337 Pa. Super. 58, , 486 A.2d 478, 480 (1984). Rather, we must afford the verdict winner the benefit of every inference which may reasonably be drawn from the evidence and reject all unfavorable testimony and inferences. Pirozzi, 605 A.2d at 375. "Judgment notwithstanding the verdict may be granted only in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper." Id. "If there is any basis upon which the jury could have properly made its award, the denial of the motion for judgment n.o.v. must be affirmed." Smith v. Renaut, 387 Pa. Super. 299, , 564 A.2d 188, 191 (1989).

In real estate transactions, fraud arises where a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. De Joseph v. Zambelli, 392 Pa. 24, , 139 A.2d 644, 647 (1958). Fraud is a generic term used to describe "anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture." Moser v. DeSetta, 527 Pa. 157, , 589 A.2d 679, 682 (1991). To recover on a claim of fraud a plaintiff must prove by clear and convincing evidence six elements:

(1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the ...


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