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[U] Smith v. Dayieb

Superior Court of Pennsylvania

February 25, 2014

KIM SMITH
v.
GEORGE M. DAYIEB, JR., PATRICK M. TOLAN T/D/B/A ARBOR TREE SPECIALISTS AND ARBOR TREE SPECIALISTS, INC. APPEAL OF: GEORGE M. DAYIEB, JR.

NON-PRECEDENTIAL DECISION

Appeal from the Order December 10, 2012 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 02-024743

BEFORE: PANELLA, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM

PANELLA, J.

Appellant, George M. Dayieb, Jr., appeals from the order entered on December 10, 2012, which dismissed Dayieb's complaint asserting a breach of a real estate sales agreement against Appellee, Kim Smith. After careful review, we reverse and direct the Prothonotary of Allegheny County to enter judgment in favor of Dayieb on his claim for specific performance.

This is the third time this case has been before this Court on appeal. In the first appeal, we set forth the factual background of the case as follows:

[Smith] lives on a farm located along Maple Spring Drive, Bethel Park, and that farm consists of approximately ten acres of land.
On September 18, 2002, [Smith] executed an agreement of sale with [Dayieb] and agreed to allow him to purchase four acres of her land for $50, 000.
The purpose of the agreement was to divide [Smith's] property into two parcels and was contingent upon subdivision approval by the municipality as [Dayieb] planned to develop the four acres that he was to purchase under the agreement. In the agreement, the seller is listed as living at Maple Spring Drive, Bethel Park, and the property to be sold is described as "Irishtown Road. To the agreed upon amount, 4 acres." It is further described as "part of Lot and Block Number 888-A-120 and DBV 9715, page 409." As noted, [Smith] owns approximately ten acres along Maple Spring Drive at that lot and block and in that deed description.
Attached to the agreement was a graphic outline executed by both parties and labeled "agreed upon configuration of subdivision." This schematic diagram specifically outlined the property to be kept by [Smith] from the ten-acre larger parcel was outlined with precise footage along each line. [Dayieb] tendered [Smith] $10, 000 in hand money and started to clear the acreage he was planning to develop.
[Smith] repudiated her agreement, claiming that [Dayieb] began to cut trees and clear acreage on a portion of the land that she believed she had retained under the agreement. She instituted this action against [Dayieb] and the company responsible for cutting some of the trees on the land. Her complaint contained claims for conversion of timber, trespass, assault, intentional infliction of emotional distress, negligent infliction of emotional distress, breach of contract, and rescission. [Dayieb] then instituted a separate action for breach of contract, specific performance of the agreement of sale, and unjust enrichment. He averred that [Smith] decided to repudiate the contract because she received an appraisal that indicated the four acres were worth $80, 000. On April 21, 2003, the trial court entered an order consolidating the two actions and ruling that the allegations in [Dayieb's] action were to be treated as counterclaims in [Smith's] action.
[Smith] moved for summary judgment on [Dayieb's] counterclaim for specific performance of the agreement of sale. She averred that the land to be conveyed by her was not sufficiently described in the agreement so as to satisfy the Statute of Frauds, 33 P.S. § 1. In a pretrial order, the trial court granted that motion on the basis that the agreement of sale was not sufficient to meet the requirements of the Statute of Frauds because the land was not sufficiently described in that document.
[Smith] settled with the tree company. After a pretrial conciliation, all of the claims that [Smith] had filed against [Dayieb] were resolved. The unjust enrichment claim filed by [Dayieb] became the sole pending matter that proceeded to a nonjury trial. [Dayieb] averred that he had improved the land. The trial court rejected [Dayieb's] ...

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