from the Judgment Entered May 30, 2017 In the Court of Common
Pleas of Dauphin County Civil Division at No(s):
BEFORE: STABILE, J., NICHOLS, J., and RANSOM, J.
Nikos Floros Phelps (Buyer) appeals from the judgment entered
following a bench trial on his claims under the Real Estate
Seller Disclosure Law (RESDL),  Unfair Trade Practices and
Consumer Protection Law (UTPCPL),  and fraudulent
misrepresentation against Appellee/Cross-Appellant Louis L.
Caperoon (Seller). Seller, in turn, cross-appeals from the
order granting summary judgment in favor of Buyer on his
RESDL claim. We affirm in part, reverse in part, and remand
for further proceedings, as set forth below.
trial court set forth the relevant facts below:
This matter stems from a residential real estate transaction
between [Buyer] and [Seller]. The subject property is located
at . . . Parkway East, Lower Paxton Township, Dauphin County,
Pennsylvania (hereinafter "the Property"). The
Property consists of a 165 year-old, 1, 888 square-foot, two
(2) story single family home, with an unfinished basement,
together with several outbuildings (barn, garage, greenhouse
structures) on 7.98 acres of land. After negotiating, the
parties agreed that [Buyer] would lease the Property for a
period of six (6) months, and at the end of the lease term,
[Buyer] would purchase the property. On June 30, 2010, the
parties executed an Agreement of Sale contemporaneous with a
Trial Ct. Op., 8/1/17, at 1-2.
Prior to signing the Agreement of Sale, Buyer inspected the
Property three times. R.R. at 52a-53a. During his
inspections, Buyer testified he asked Seller if there was
anything he needed to know and Seller responded that
"everything was fine. There was nothing to be concerned
with." Id. at 54a. Buyer acknowledged that he
chose not to hire a property inspector and that he was aware
that a seller should provide a RESDL disclosure statement.
Id. at 145a. Buyer stated he did not find it unusual
that Seller did not provide a RESDL disclosure statement in
this case. Id.
11 of the Agreement of Sale provided as follows:
Inspection of Premises - Buyer certifies that he has
personally inspected the premises, or has caused it to be
inspected in a manner satisfactory to him. Buyer agrees that
the property is in satisfactory condition and repair. Buyer
hereby acknowledges that he is purchasing the property
"as is". Buyer expressly waives any and all implied
warranties to which the Buyer might be entitled, and
acknowledges that he was given no express warranties.
Id. at 16a.
lived at the Property for six months under the lease. It was
only after Buyer purchased the Property, however, that he
discovered numerous deficiencies, including a deteriorated
septic system requiring replacement; a cracked furnace heat
exchanger; leaky roof; flawed electrical wiring; water damage
from a never-connected washer drain; and various issues
associated with the improper removal of load-bearing walls
and heating ducts. See generally Compl., 1/8/13, at
sued Seller, raising three claims: (1) violation of RESDL;
(2) violation of UTPCPL; and (3) fraudulent
misrepresentation. With respect to his first claim, Buyer
averred that Seller failed "to disclose material
defects, " in the disclosure form required by RESDL.
Compl., 1/8/13, at ¶¶ 4, 9. With respect to his
claim for RESDL damages, Buyer alleged as follows:
The total damages suffered by [Buyer] as a result of
[Seller's] failure to disclose material defects, as
required by [RESDL] are unknown precisely, as [Buyer]
continues to investigate the best and most cost-effective
solutions to the various problems, but said damages are
currently estimated to be approximately $120, 000.00. [Buyer]
reserves the right to supplement this averment as his
Compl., 1/8/13, at ¶ 9; id. ad damnum cl.
admitted that he did not provide Buyer a RESDL disclosure
form. Answer, 5/6/13, at ¶ 4. Seller further averred
that he "did not disclose any of the material defects
alleged [by Buyer] solely because no such defects existed or
were known to [Buyer] at the time the Agreement of Sale was
entered into." Id. Seller additionally asserted
that no disclosure was required because it was a sale of
commercial property. Id. at ¶ 9.
close of discovery, Buyer moved for partial summary judgment
on Seller's liability under RESDL. Seller filed an answer
and cross-motion for summary judgment on all of Buyer's
claims. Buyer, in turn, filed an answer in opposition to
a hearing, the trial court denied Seller's cross-motion
and granted Buyer's motion for partial summary judgment
on Buyer's liability under RESDL. The court reasoned that
the "provisions of the [RESDL] cannot be waived."
Order, 4/23/15. The court ordered that Seller "is liable
to [Buyer] for all damages, if any, resulting from the
material defects alleged in [Buyer's] Complaint, in an
amount to be proven by [Buyer] at trial." Id.
December 13 and 29, 2016, the trial court held a bench
trial. Buyer did not orally move for or file a
motion for a directed verdict at the close of evidence.
4, 2017, the trial court awarded damages of $39, 065.02 to
Buyer for Seller's violation of RESDL with respect to
"(1) the defective roof and resulting water damage; and
(2) re-wiring of the electric which resulted in hidden
junction boxes and open air splices." Memo. Op. &
Order, 5/4/17, at 13. The court found in favor of Seller on
Buyer's remaining claims of UTPCPL and fraudulent
filed a timely post-trial motion that, in relevant part,
challenged the trial court's award of RESDL damages.
Buyer claimed that the court miscalculated RESDL damages and
did not consider whether he was entitled to additional
damages of $194, 692.82, representing consequential and
difference-in-value damages under Skurnowicz v.
Lucci, 798 A.2d 788, 795 (Pa. Super.
trial court denied Buyer's post-trial motion on May 24,
2017, before Seller filed a response. The court formally
entered judgment on May 30, 2017, and Buyer timely appealed
on May 31, 2017. Although Seller did not file a post-trial
motion, he timely cross-appealed on June 9,
2017. Each party filed a timely court-ordered
Pa.R.A.P. 1925(b) statement. Seller's Rule 1925(b)
statement claimed that the existence of the "as is"
statement in the Agreement of Sale precluded any RESDL
liability. Seller's Pa.R.A.P. 1925(b) Statement, 6/23/17,
Cross-Appeal at 923 MDA 2017
ease of disposition, we first resolve the cross-appeal of
Seller, who raises the following issue:
1. Whether the Summary Judgment Court erred in granting
[Buyer's] motion for partial summary judgment when it
found, as a matter of law, that the inclusion of an "as
is" clause in the Agreement to purchase real estate was
not sufficient to put [Buyer] on notice that there may be
liabilities attendant to the purchase and relieve [Seller] of
the obligation to provide a seller's disclosure form?
2. Whether the Trial Court erred when it failed to find that
[Seller] was entitled to an "advice of counsel"
defense as to all of the allegations of [Buyer's]
Seller's Brief at 4.
First Issue - The "As Is" Clause
support of his first issue, Seller contends that no
Pennsylvania appellate court has ruled on whether an "as
is" clause in a real estate sales contract negates the
disclosure requirement set forth within RESDL, a statute.
Seller's Brief at 35-36. Seller relies on PBS Coals,
Inc. v. Burnham Coal Co., 558 A.2d 562 (Pa. Super.
1989), which he claims controls, even though it predates
RESDL. Id. at 33-34.
standard of review follows:
When a party seeks summary judgment, a court shall enter
judgment whenever there is no genuine issue of any material
fact as to a necessary element of the cause of action or
defense that could be established by additional discovery. A
motion for summary judgment is based on an evidentiary record
that entitles the moving party to a judgment as a matter of
law. In considering the merits of a motion for summary
judgment, a court views the record in the light most
favorable to the nonmoving party, and all doubts as to the
existence of a genuine issue of material fact must be
resolved against the moving party. Finally, the court may
grant summary judgment only when the right to such a judgment
is clear and free from doubt. An appellate court may reverse
the granting of a motion for summary judgment if there has
been an error of law or an abuse of discretion.
Erie Ins. Exch. v. Moore, 175 A.3d 999, 1008 (Pa.
Super. 2017) (citation omitted).
rules of statutory construction are well-settled:
The Statutory Construction Act, 1 Pa.C.S. §§
1901-1991, sets forth principles of statutory construction to
guide a court's efforts with respect to statutory
interpretation. In so doing, however, the Act expressly
limits the use of its construction principles. The purpose of
statutory interpretation is to ascertain the General
Assembly's intent and to give it effect. In discerning
that intent, courts first look to the language of the statute
itself. If the language of the statute clearly and
unambiguously sets forth the legislative intent, it is the
duty of the court to apply that intent and not look beyond
the statutory language to ascertain its meaning. Courts may
apply the rules of statutory construction only when the
statutory language is not explicit or is ambiguous.
. . . We must read all sections of a statute together and in
conjunction with each other, construing them with reference
to the entire statute. When construing one section of a
statute, courts must read that section not by itself, but
with reference to, and in light of, the other sections.
Statutory language must be read in context, together and in
conjunction with the remaining statutory language.
Every statute shall be construed, if possible, to give effect
to all its provisions. We presume the legislature did not
intend a result that is absurd, impossible, or unreasonable,
and that it intends the entire statute to be effective and
certain. When evaluating the interplay of several statutory
provisions, we recognize that statutes that relate to the
same class of persons are in pari materia and should
be construed together, if possible, as one statute. Also,
when interpreting a statute we must listen attentively to
what the statute says, but also to what it does not say.
Retina Assocs. of Greater Phila., Ltd. v. Retinovitreous
Assocs., Ltd., 176 A.3d 263, 270 (Pa. Super. 2017)
(citations and internal quotation marks omitted); see
also 1 Pa.C.S. § 1928(a) (stating that for any
statute that derogates common law and was adopted after
September 1, 1937, we do not have to strictly construe that
of background, RESDL, which became effective on December 20,
2001, applies "to all residential real estate
transfers" except for certain types of transfers, none
of which are applicable here. See 68 Pa.C.S. §
7302. Section 7303 provides as follows:
Any seller who intends to transfer any interest in real
property shall disclose to the buyer any
material defects with the property known to the seller by
completing all applicable items in a property disclosure
statement which satisfies the requirements of section 7304
(relating to disclosure form). A signed and dated copy of the
property disclosure statement shall be
delivered to the buyer in accordance with section 7305
(relating to delivery of disclosure form) prior to the
signing of an agreement of transfer by the seller and buyer
with respect to the property.
68 Pa.C.S. § 7303 (emphases added). Generally, a seller
"should only be required to reveal material defects with
the actual physical structure of the house, with legal
impairments on the property, and with hazardous materials
located there." Milliken v. Jacono, 60 A.3d
133, 140 (Pa. Super. 2012) (en banc).
7308 of RESDL imposes an affirmative duty on the seller:
The seller is not obligated by this chapter to make any
specific investigation or inquiry in an effort to complete
the property disclosure statement. In completing the property
disclosure statement, the seller shall not make any
representations that the seller or the agent for the seller
knows or has reason to know are false, deceptive or
misleading and shall not fail to disclose a known material
68 Pa.C.S. § 7308.
Pennsylvania Supreme Court "has recognized that the term
'shall' is mandatory for purposes of statutory
construction when a statute is unambiguous." Koken
v. Reliance Ins. Co., 893 A.2d 70, 81 (Pa. 2006) (some
internal quotation marks and citation omitted); accord
SAS Inst., Inc. v. Iancu, 138 S.Ct. 1348, 1354 (2018)
("The word 'shall' generally imposes a
nondiscretionary duty." (citation omitted)).
PBS Coals, a case that predates RESDL by over a
decade, the parties executed an agreement for the sale of
real property that had been inspected by both parties in the
winter. PBS Coals, 558 A.2d at 563. The agreement
provided that the sale of the property was "as is."
Id. at 564. In the spring, "an acid water
discharge was discovered" on the property that neither
party knew about. Id. at 563. The parties
essentially disagreed over the meaning of "as is"
as to which party under the agreement should pay for and fix
the discharge. Id. at 564.
PBS Coals Court noted that the "use of the
term, 'as is' in the context of a transfer of real
property interests present[ed] a question of first impression
in Pennsylvania." Id. at 564. After summarizing
pertinent caselaw from other jurisdictions, the Court held
that the parties' "agreement contained a term which
has common meaning; when something is accepted 'as
is' the buyer is put on notice that there may be
liabilities attendant to the purchase." Id. The
Court thus held that the buyer of the real property was
obligated to resolve the discharge because it purchased the
property on an "as is" basis. Id. at 565.
Because PBS Coals predated RESDA and RESDL, the
Court did not address any statutory disclosure requirement.
Seller essentially asks this Court to conclude that the
"as is" clause in a separate, distinct agreement of
sale and the holding of PBS Coals permits him to
escape the obligatory statutory language of "shall"
in Section 7303. However, Seller does not refer us to any
RESDL section or caselaw permitting him to disregard the
mandatory language of Section 7303. In fact, Seller does not
raise any statutory interpretation argument or argue that the
Agreement of Sale was a contractual waiver of Section 7303.
contrast, RESDL, which was enacted over a decade after
PBS Coals, contains mandatory language: "Any
seller who intends to transfer any interest in real property
shall disclose to the buyer any material
defects with the property known to the seller." 68
Pa.C.S. § 7303 (emphasis added); Koken, 893
A.2d at 81. RESDL contains no exceptions to the disclosure
requirements, including the presence of an "as is"
clause in an agreement to transfer residential real estate,
and thus, Seller must comply. See 68 Pa.C.S. §
7303; Koken, 893 A.2d at 81; Retina Assocs. of
Greater Phila., 176 A.3d at 270. Thus, we
conclude that Seller has not established that he does not
have to comply with RESDL's disclosure requirement
because of an "as is" clause in an agreement of
Second Issue - Advice of Counsel
Seller's second argument, which we quote in its entirety,
is as follows:
[Seller], relying on the advice of counsel, sold the Property
"as is" and did not provide [Buyer] with a
seller's disclosure form. A good faith reliance on the
advice of counsel establishes a defense to a under the
Dragonetti statute (Miller v. St. Luke's
Univ. Health Network, 142 A.3d 884, 897 ([Pa. Super.]
2016), appeal denied, 164 A.3d 479 (Pa. 2016)) and
should also establishes a good faith defense under the RESDL.
Because of his reliance on the advice of counsel,
[Seller's] violation of the RESDL was not willful or
negligent and he should not be liable to [Buyer] for any
damages under the RESDL.
Seller's Brief at 37.
Initially, Seller's reliance on Miller is inapt
because the language of the Dragonetti statute explicitly
permits a defense of "advice of
counsel." See 42 Pa.C.S. § 8352(2).
RESDL does not. See 68 Pa.C.S. §§
7301-7315. Seller has not cited or otherwise argued that the
mandatory language of 68 Pa.C.S. § 7303 regarding the
provision of a seller's disclosure can be negated by
"advice of counsel." See 68 Pa.C.S. §
7303. Accordingly, Seller has not established entitlement to