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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

JAN M. CHASE, PERSONAL 

REPRESENTATIVE OF THE ESTATE OF 

CHRIS S. CHASE, CHRIS S. CHASE 

FAMILY ENTERPRISES, LLC, AND LARRY 

D. FRAZEE 

v. 

DAVID M. CREEGAN 

Appellants 

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

Appellee No. 1681 WDA 2015 

Appeal from the Judgment Entered October 16, 2015 

In the Court of Common Pleas of Bedford County 

Civil Division at No(s): 136 for 2012 

JAN M. CHASE, PERSONAL 

REPRESENTATIVE OF THE ESTATE OF 

CHRIS S. CHASE, CHRIS S. CHASE 

FAMILY ENTERPRISES, LLC, AND LARRY 

D. FRAZEE 

v. 

DAVID M. CREEGAN 

Appellees 

Appellant 

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

No. 1757 WDA 2015 

Appeal from the Judgment Entered October 16, 2015 

In the Court of Common Pleas of Bedford County 

Civil Division at No(s): 136 for the year 2012 
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BEFORE: LAZARUS, J., STABILE, J., and STRASSBURGER, J.* 

MEMORANDUM BY LAZARUS, J.: FILED APRIL 04, 2017 

Jan M. Chase, Personal Representative of the Estate of Chris S. 

Chase,' Chris S. Chase Family Enterprises, LLC., and Larry D. Frazee 

(collectively "Plaintiffs/Sellers") appeal and David M. Creegan 

(Creegan/Buyer) cross -appeals from the judgment entered on the jury's 

verdict in favor of Creegan in the amount of $126,000.00, after the trial 

court denied Plaintiffs' and Creegan's post -trial motions. After careful 

review, we affirm. 

On January 29, 2008, the parties entered into a "contract for deed"2 

whereby Plaintiffs agreed to sell Creegan a 448.75 -acre tract of land located 

at 557 Bedford Valley Road, in Londonderry Township, Bedford County. 

Although the title abstract attached to the parties' agreement of sale and oil 

and gas leases on the tract indicated that the property consisted of 448.75 

acres, it actually consisted of 246.25 acres. The parties agreed upon a sale 

price of $225,000.00, and that all payments would be made by January 1, 

2010. Installment payments of $25,000.00 were due by Creegan upon 

execution of the agreement and by January 9, 2009; and a balloon payment 

* Retired Senior Judge assigned to the Superior Court. 

1 Plaintiff Chris Chase passed away during the pendency of the action. 

2 Although the actual document is titled "Contract for Deed," we have chosen 

to use the more universal term, "agreement of sale," throughout this 

memorandum. 

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was due by January 1, 2010, which included the remainder of the purchase 

price and 6% interest. In addition, Creegan was to pay all taxes and 

assessments levied against the property. 

In the event that the agreement was terminated, Creegan was 

required to return the property in "substantially the same condition" as it 

existed on the sale date. In the event of default, Creegan was to forfeit any 

and all payments made under the terms of the contract, including taxes and 

assessments. 

Creegan took immediate possession of the premises on the date of 

sale and tendered a check to Sellers in the amount of $18,750.00. The 

check was returned for insufficient funds. In early February 2008, Creegan 

discovered the acreage discrepancy after reviewing a property survey that 

had been prepared in October 2007 for Plaintiff Chris Chase by witness, Rex 

Clark. Creegan later wired funds to Plaintiffs to make up for the returned 

check and for the remainder of the down payment. On March 8, 2010, 

Plaintiff Chris Chase sent Creegan a letter acknowledging that the parties 

had met face-to-face to discuss Creegan's current default status on the 

contract and, if Creegan paid $25,000.00 (principal and interest) by April 7, 

2010, that the deadline for the final payment would be extended to October 

7, 2010. The letter also indicated that the interest rate would retroactively 

increase from 6% to 7%, effective January 1, 2010. 

On February 25, 2011, Plaintiffs sent Creegan a letter reminding him 

that his final payment was still past due and extending his pay-off date to 

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September 10, 2011, under three conditions: (1) payment of $32,000.00 by 

March 10, 2011; (2) acknowledgment that the amount of land sold to him 

was actually 246.25 acres; and (3) return of a signed copy of the letter to 

Plaintiffs. On May 13, 2011, Plaintiffs gave Creegan written notice that final 

payment was due in the amount of $214,502.25 and demanded immediate 

possession of the property if payment was not tendered. On May 12, 2011, 

Kristin M. Banasick, Esquire, notified Creegan by letter that she had been 

advised by Plaintiffs that he was still in default, and that according to the 

parties' agreement, "if the default continues for an additional period of 

fifteen (15) days, you are to surrender the premises and Mr. Chase may 

repossess the property." Letter to Creegan, 5/12/11. 

On February 6, 2012, Plaintiffs filed an action in ejectment against 

Creegan, seeking the court to "restor[e] plaintiffs to the possession of the . . 

. property" and "for costs, counsel fees and such other and further relief this 

Court deems just and appropriate." Plaintiffs' Complaint, 2/6/12, at 6. In 

response, Creegan filed an answer, new matter and three counterclaims: 

Counterclaim I (Fraudulent Misrepresentation as Inducement to Enter 

Contract - damages);3 Counterclaim II (Fraudulent Misrepresentation as 

3 Creegan filed two fraudulent misrepresentation counterclaims. The first 

claim sought reimbursement of the funds he paid toward the agreement of 

sale and for damages for improvements he made to the property. The 

second claim sought reformation of the contract and specific performance 

with a reduced price reflecting the correct amount of acres of the tract. 

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Inducement to Enter Contract - specific performance); and Counterclaim III 

(Unjust Enrichment). Creegan claimed that Plaintiffs "intentionally 

misrepresented the acreage of the property sold subject to the contract as 

containing 448 acres." Creegan Answer, New Matter, and Counterclaim, 

4/27/12, at 1119. Creegan also averred that after he was induced to buy the 

property (which he believed to consist of 448 acres) and discovered the 

acreage discrepancy, Plaintiffs told him to "continue with the payments 

under the contract with the assurance that the inaccuracy would be 

addressed." Id. at 1123. Finally, Creegan asserted that based upon 

Plaintiffs' assurances, he "invested substantial sums of money in improving 

the property," including a cabin, well, fencing and gating, and road 

improvements. Id. at 1126. 

In their answer to Creegan's counterclaims, Plaintiffs averred: 

It is admitted the Counterclaim defendants had the property 

surveyed in 2007 by Rex E. Clark, R.S. It is denied the 

Counterclaim defendants misrepresented the acreage to the 

Counterclaim plaintiff. To the contrary, prior to closing on 

January 29, 2008, the discrepancy in the acreage was 

openly discussed and a copy of the survey was provided 

to Counterclaim plaintiff indicating the actual acreage 

being sold. 

Plaintiffs' Answer to Counterclaim, 5/21/12, at '11 20 (emphasis added). In 

response to Creegan's first set of interrogatories and request for production 

of documents, Plaintiffs gave the following additional information to support 

paragraph 20 of their answer: 

The plaintiffs [including Larry Frazee] along with the defendant 

gathered at a table in the basement of [4976 White Rock Road, 

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Friendsville, Maryland]. A copy of the survey prepared by Rex 

Clark . . . was provided and reviewed by the parties along with 

the Purchase Agreement[.] Both parties reviewed and agreed to 

the documents provided by and to them prior to closing. 

Plaintiffs' Answers to Interrogatories, 1/31/13, at '11 24(d). 

On June 11, 2015, Plaintiffs filed a motion for judgment on the 

pleadings, seeking immediate possession of the premises. On August 17, 

2015, immediately prior to the start of trial, the court entered an order: 

dismissing, with prejudice, Creegan's Counterclaim II (Fraud - specific 

performance) due to the fact that he was "unable to provide any competent 

evidence regarding the value of the real property to seek reformation and 

specific performance of the contract;" granting judgment on the pleadings 

in favor of Plaintiffs, ejecting Creegan from the premise and giving Plaintiffs 

possession of the property; and denying the parties' request for counsel fees 

and costs.4 See Order, 8/17/15, at III 1-3; see also N.T. Jury Trial, 

8/17/15, at 38, 54-55. After a two-day jury trial held on August 17-18, 

2015, the court entered a verdict in favor of Creegan for $126,000.00 in 

damages. The verdict slip denoted that the jury awarded Creegan 

4 The court determined that since Plaintiffs were out of possession and 

Creegan conceded he had not performed under the contract, Plaintiffs were 

entitled to immediate possession in their ejectment action. 

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$68,000.005 for fraud in the inducement (damages) and $58,000 for unjust 

enrichment. 

Post -trial motions were filed by both parties and denied by the court 

on October 6, 2015. On October 22, 2015, Plaintiffs filed a notice of appeal; 

on October 30, 2015, Creegan filed a notice of cross-appeal.6 The court 

entered an order requiring Plaintiffs and Creegan to file Pa.R.A.P. 1925(b) 

concise statements of matters complained of on appeal, with which the 

parties complied. This timely appeal and cross -appeal follow. 

On appeal, Plaintiffs present the following issues for our consideration: 

(1) Did the trial court err in refusing to grant judgment in 

favor of the plaintiffs on the counterclaim for unjust 

enrichment where it was conclusively established that the 

relationship of the parties was founded upon an express 

written contract? 

(2) Did the trial court err in refusing to grant judgment in 

favor of the plaintiffs on the counterclaim for fraud in the 

inducement of a real estate contract where the alleged 

misrepresentation was the quantity of acreage, a defect 

that was readily determinable by a reasonable inspection? 

Did the trial court err in precluding the testimony of two 

liability witnesses where both were identified as persons 

with first-hand knowledge of the contract and/or the 

property in response to an interrogatory and as liability 

witnesses in both of Plaintiffs' Pre -Trial Statements on the 

(3) 

5 This figure represents the payments that Creegan made to Plaintiffs under 

the agreement of sale. The payments were in the form of six separate 

checks, dated 1/29/08, 1/29/08, 11/12/08, 12/1/08, 2/09 and 4/10. 

6 See Pa.R.A.P. 903(b) (cross appeals may be filed within 14 days of date on 

which first timely notice of appeal served). 

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basis of an incomplete answer to another interrogatory, 

where [Creegan] made no effort to determine what 

information the witnesses possessed through formal or 

informal discovery? 

(4) Did the trial court err by refusing to reduce the verdict or 

to give binding instructions to the effect that [Creegan] 

could not recover damages for fraud in the inducement 

that were incurred after he had actual knowledge of the 

correct quantity of acreage where the fraud claim was 

based on a misrepresentation of the quantity of acreage? 

Did the trial court err by refusing to give the jury an 

instruction regarding a rule of construction for interpreting 

a legal description when the metes -and -bounds description 

conflicts with the quantity of land, where the alleged 

misrepresentation was contained in exactly that type of 

legal description? 

(6) Did the trial court err by precluding the Plaintiffs' claim for 

damages or mesne profits on [the] basis of a label in the 

caption where the facts alleged in the complaint gave rise 

to a claim for either? 

(5) 

On cross -appeal, Creegan presents the following issues for our review: 

(1) Whether, under Pennsylvania law, the Honorable Trial 

Court erred by entering a compulsory nonsuit on Count II 

of [Creegan's] Counterclaim and then declining to remove 

said compulsory nonsuit where: 1) similar to Count I of 

[Creegan's] Counterclaim upon which the jury found in 

[Creegan's] favor, Count II of the Counterclaim alleged 

fraud in the inducement but, in the alternative, requested 

modification and specific performance of the underlying 

Contract for Deed to reflect the true acreage of the 

Property in question - 246.25 acres - rather than the 

448[.75] acres fraudulently misrepresented by the 

[Plaintiffs] to [Creegan]; 2) such a request for a 

conditional verdict is authorized under Pennsylvania law; 

3) [Creegan] was prepared to testify to the appropriate 

reformed purchase price at the time of trial; but 4) on the 

morning of trial, and only moments prior to counsels' 

slated delivery of opening statements, the Court very 

unexpectedly entered a compulsory nonsuit on Count II of 

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[Creegan's] Counterclaim, sua sponte, without any 

testimony being taken in Court. 

(2) Whether, under Pennsylvania law, the Honorable Trial 

Court erred by granting [Plaintiffs'] motion for judgment 

on the pleadings relative to [Creegan's] sole action in 

ejectment on the basis of the compulsory nonsuit that was 

improperly entered on Count II of [Creegan's] 

Counterclaim where: 1) [Plaintiffs'] motion for judgment 

on the pleadings was filed nearly three years to the day 

after the relevant pleadings were closed; 2) five days prior 

to trial, the Court verbally denied [Plaintiffs'] motion but 

then reversed course only mere moments before the 

commencement of trial; 3) neither the pleadings nor the 

evidence presented at trial established the necessary 

elements to sustain an ejectment action; and 4) the Trial 

Court declined to vacate the judgment so entered. 

I. Plaintiffs' Claims on Appeal 

A. Unjust Enrichment 

Plaintiffs first assert that the trial court erred in failing to grant 

judgment in their favor on Creegan's unjust enrichment claim. Specifically, 

Plaintiffs claim that because they "conclusively established that the 

relationship of the parties was founded upon an express written contract," 

Plaintiffs' Brief, at 4, there is no need to imply a contract under the equitable 

doctrine of unjust enrichment. 

Unjust enrichment is essentially an equitable doctrine. Where 

unjust enrichment is found, the law implies a contract, which 

requires the defendant to pay to the plaintiff the value of the 

benefit conferred. The elements necessary to prove unjust 

enrichment are: 

(1) benefits conferred on defendant by plaintiff; (2) 

appreciation of such benefits by defendant; and (3) 

acceptance and retention of such benefits under such 

circumstances that it would be inequitable for defendant to 

retain the benefit without payment of value. The 

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application of the doctrine depends on the particular 

factual circumstances of the case at issue. In 

determining if the doctrine applies, our focus is not 

on the intention of the parties, but rather on 

whether the defendant has been unjustly enriched. 

Mitchell v. Moore, 29 A.2d 1200, 1203-04 (Pa. Super. 1999) (emphasis 

added) (citations and internal quotation marks omitted). Moreover, while 

unjust enrichment is an equitable remedy, our Court has permitted parties 

to plead breach of contract and unjust enrichment alternatively, although 

recovery for both claims is not allowed. Lugo v. Farmers Pride, Inc., 967 

A.2d 963 (Pa. Super. 2009). Finally, a victim of fraud in the inducement has 

two options: (1) rescind the contract, or (2) affirm the contract and sue for 

damages. Eigen v. Textron Lycoming Reciprocating Engine Div., 874 

A.2d 1179, 1184 (Pa. Super. 2005) (citation omitted). 

Instantly, the jury determined that Creegan was entitled to rescind the 

contract due to Plaintiffs' fraud in the inducement. Rescission, an equitable 

remedy, involves a disaffirmance of the contract and a restoration of the 

status quo; whereas, the recovery of damages, which is a legal remedy, 

involves an affirmance of the contract. Wedgewood Diner, Inc. v. Good, 

534 A.2d 537, 539-39 (Pa. Super. 1987) (citing 40 A.L.R. 4th 627, 630-31 

(1985)). Accordingly, the parties were properly restored to their positions 

prior to entering into the agreement; Plaintiffs were given possession of the 

property and Creegan was reimbursed all his monies paid under the 

agreement. 

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Creegan, however, also testified at trial that Plaintiffs received the 

benefit of deer hunts on the property worth $11,500.00 in addition to 

substantial improvements he made to the property, including building an 

$84,500.00 log cabin, expending $6,038.10 to drill a potable water well, 

incurring $6,620.00 in expenses to erect over 4,000 linear feet of fencing 

and gating, and making $19,494.39 in road improvements. The jury 

concluded that where Plaintiffs benefitted from these improvements, in order 

to be equitable, Creegan was entitled to restitution for these improvements. 

See Restatement (Second) of Contracts, § 376 (restitution when contract is 

voidable). Thus, based on the evidence substantiating the improvements, 

which consisted of invoices, photographs, and check records, we cannot say 

that the jury's decision to award damages was unsupported in the record or 

demonstrably capricious. Restatement (Second) of Contracts, § 371(b) 

(measure of restitution interest to extent which other party's property has 

bene increased in value); Robbins v. Kristofic, 643 A.2d 1079 (Pa. Super. 

1994). 

B. Fraud 

Plaintiffs also claim that the court should have entered judgment in 

their favor on Creegan's fraud counterclaim. Specifically, they assert that 

because the acreage discrepancy was "a defect that was readily 

determinable by a reasonable inspection," Plaintiffs' Brief, at 4, Creegan 

should not have succeeded on this counterclaim. 
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In order to void a contract due to an intentional or fraudulent 

misrepresentation, the party alleging fraud must prove, by clear and 

convincing evidence: 

(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 misrepresentation; and (6) 

the resulting injury was proximately caused by the 

reliance. 

Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999), citing Gibbs v. Ernst, 647 

A.2d 882, 889 (Pa. 1994). It is not enough simply to assert that a 

statement was "fraudulent" and that reliance upon it induced some action. 

Gruenwald v. Advanced Computer Applications, Inc., 730 A.2d 1004, 

1014 (Pa. Super. 1999). It is also not sufficient to aver that a knowingly 

false statement was made for the purpose of misleading another into 

reliance upon it. Sewak v. Lockhart, 699 A.2d 755, 759 (Pa. Super. 

1997). Before fraud will be found, a plaintiff must demonstrate that he 

justifiably relied on the false statement. Id. To be justifiable, reliance upon 

the representation of another must be reasonable. Drelles v. 

Manufacturers Life Insurance Co., 881 A.2d 822 (Pa. Super. 2005). 

In a case of fraud in the inducement, "the party proffering evidence of 

additional prior representations does not contend that the representations 

were omitted from the written agreement, but, rather, claims that the 

representations were fraudulently made and that 'but for them' he would 

never have entered into the agreement." Blumenstock v. Gibson, 811 

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A.2d 1029, 1036 (Pa. Super. 2002); see Restatement (Second) of 

Contracts, § 162(1) ("A misrepresentation is fraudulent if the maker intends 

his assertion to induce a party to manifest his assent and the maker: (a) 

knows or believes that the assertion is not in accord with the facts, or (b) 

does not have the confidence that he states or implies in the truth of the 

assertion, or (c) knows that he does not have the basis that he states or 

implies for the assertion."). 

Here, Creegan was provided several documents indicating that the 

tract he was purchasing consisted of 488.75 acres, when in actuality it was 

44% less than that. Specifically, the title abstract attached to the parties' 

agreement of sale and several oil and gas leases for the parcel stated the 

incorrect acreage. These documents were provided to Creegan when he 

agreed to buy the tract. As the trial court points out, it is unreasonable to 

assume that a buyer, under the circumstances, would be able to discern with 

the naked eye whether a given tract of land is four hundred or two hundred 

acres. Moreover, the jury believed Creegan's testimony that he did not 

discern the acreage discrepancy until after he signed the agreement. 

Therefore, we conclude that Creegan justifiably relied on Plaintiffs' material 

misrepresentation in purchasing the land. Cf. Blumenstock v. Gibson, 

811 A.2d 1029 (Pa. Super. 2002) (party could not justifiably rely upon 

seller's prior oral representations, yet sign real estate contract denying those 

representations regarding sump pits and pumps being non -operational and 

unnecessary; fact that seller did not affirmatively disclose pumps' 

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functionality irrelevant when buyers could have observed physical condition 

of property and made own reasonable inferences about pumps). 

C. Liability Witnesses 

Plaintiffs next claim that the trial court erred in precluding the 

testimony of two lay witnesses, Plaintiff Larry Frazee and his son, Brian 

Frazee, whom they allege had first-hand knowledge of a 2004 conversation 

with Creegan regarding the true acreage of the property. Plaintiffs claim 

that the trial court incorrectly determined that their testimony should not be 

permitted at trial because Plaintiffs violated discovery rules by not 

specifically listing their exact testimony in an answer to an interrogatory. 

Prior to trial, Creegan filed a motion in limine to preclude the 

testimony of Brian Freeze claiming that while Brian had been identified in 

Plaintiffs' pre-trial statement filed in July 2015, he was never identified as an 

expert and any testimony that Brian could provide would be "wholly 

irrelevant." Motion in Limine, at III 4-8. Because Brian was neither a party 

to the parties' real estate transaction or present during the singing of the 

agreement of sale on January 29, 2008, Creegan claimed that his testimony 

about the parties' agreement would be inadmissible hearsay. Id. at '11 13. 

At trial, the court precluded Brian from testifying that he had a conversation 

with his Father, Larry, and in the presence of Creegan about the acreage 

discrepancy. N.T Jury Trial, 8/17/15, at 5-6. 

In Gill v. McGraw Electical Co., 399 A.2d 1095 (Pa. Super 1979) (en 

banc), our Court set forth the factors a court must consider in determining 

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whether or not a witness should be precluded for failure to comply with 

discovery rules: 

(1) the prejudice or surprise in fact of the party against whom 

the excluded witnesses would have testified[;] (2) the ability of 

that party to cure the prejudice[;] (3) the extent to which waiver 

of the rule against calling unlisted witnesses would disrupt the 

orderly and efficient trial of the case or of cases in the court[; 

and] (4) bad faith or willfulness in failing to comply with the 

court's order. 

Id. at 1102. 

Instantly, both Larry and Brian Frazee were listed as witnesses in 

Plaintiffs' pre-trial memorandum. However, Brian is not mentioned in the 

Plaintiffs' Answers to Interrogatories as having been present at the "closing 

on January 29, 2008, [when] the discrepancy in the acreage was openly 

discussed and a copy of the survey was provided to Counterclaim plaintiff 

indicating the actual acreage being sold." Plaintiffs' Answer to Counterclaim, 

5/21/12, at ¶ 20. Rather, Plaintiffs' answer to that specific interrogatory 

states, in relevant part: 

The plaintiffs [including Larry Frazee] along with [Creegan] 

gathered at a table in the basement of [4976 White Rock Road, 

Friendsville[,] Maryland]. A copy of the survey prepared by Rex 

Clark . . . was provided and reviewed by the parties along with 

the Purchase Agreement[.] Both parties reviewed and agreed to 

the documents provided by and to them prior to closing. 

Plaintiffs' Answers to Interrogatories, 1/31/13, at ¶ 24(d). 

Therefore, while Creegan had notice that these witnesses may be 

called at trial to provide testimony with regard to liability and damages, he 

had no idea until two weeks before trial that the Plaintiffs intended to offer 

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Brian Freeze's testimony to support their position on the central issue in the 

case - whether Creegan knew the proper acreage of the tract prior to 

signing the parties' agreement. Compare Smith v. Grab, 705 A.2d 894 

(Pa. Super. 1997) (trial court abused its discretion in precluding lay witness 

testimony, which did not go to core issue of plaintiff's treatment, where 

witnesses were listed in Plaintiff's response to interrogatories and 

supplemental pre-trial statement) with Gill, supra (where appellees did not 

provide appellant with any notice of expected testimony by expert 

witnesses, as required by court's pre-trial order, court committed error in 

permitting witnesses to testify at trial) and Nissley v. Pennsylvania R.R. 

Co., 259 A.2d 451 (Pa. 1969) (where plaintiff refused to answer 

interrogatory relating to expert witness it was error to permit witness to 

testify). 

Moreover, to the extent that Larry Freeze was not permitted to testify 

regarding the alleged conversation he had with Brian and Creegan, the court 

properly limited his testimony to the facts asserted in Plaintiffs' answer to 

interrogatories. See Feingold v. Southeastern PennsylvaniaTransp. 

Auth., 488 A.2d 284 (Pa. Super. 1985) (in absence of bad faith or willful 

disobedience of discovery rules, most significant considerations are 

importance of witness' testimony and prejudice to party against whom 

witness will testify). 

D. Damages for Fraud Incurred After Creegan had Notice of 

Acreage Discrepancy 

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Plaintiffs next claim on appeal that it was error for the jury to award 

Creegan any damages for fraud in the inducement for the period of time 

after he realized the actual acreage of the property. Instantly, Creegan 

testified that after he discovered the acreage discrepancy, Plaintiffs told him 

to continue to pay under the contract with their assurance that the 

inaccuracy would be addressed. Therefore, it was reasonable for the jury to 

believe Creegan's testimony and award him damages for Plaintiffs' false 

assurances even after he discovered the discrepancy. Boggavarapu v. 

Ponist, 542 A.2d 516, 519 (Pa. 1988) (jury exercises prerogative to believe 

all, some, or none of evidence presented); Foflygen v. Allegheny Gen. 

Hosp., 723 A.2d 705, 712 (Pa. Super. 1999) (questions of credibility and 

conflicts in evidence are for fact -finder to resolve). Accordingly, we find no 

merit to this claim on appeal. 

E. Jury Instruction for Misrepresentation of Acreage 

Plaintiffs claim that the trial court erred in refusing to instruct the jury 

on a legal description of the land in metes and bounds terms, rather than 

solely acres. Plaintiffs claim that there was factual support in the record to 

warrant a metes and bounds charge, specifically the title abstract, and that 

such a charge would have "given the jury legal guidance on how to construe 

th[ose] documents." 

In examining jury instructions, the scope of review is limited to 

determining whether the trial court committed a clear abuse of 

discretion or error of law controlling the outcome of the case. 

Error in a charge is sufficient ground for a new trial if the charge 

as a whole is inadequate or not clear or has a tendency to 

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mislead or confuse rather than clarify a material issue. Error will 

be found where the jury was probably [misled] by what the trial 

judge charged or where there was an omission in the charge. A 

charge will be found adequate unless the issues are not made 

clear to the jury or the jury was palpably misled by what the trial 

judge said or unless there is an omission in the charge which 

amounts to a fundamental error. In reviewing a trial court's 

charge to the jury, the reviewing court must look to the charge 

in its entirety. Because this is a question of law, the court's 

review is plenary. 

Passarello v. Grumbine, 87 A.3d 285, 287 (Pa. 2014) (citations, quotation 

marks, and ellipses omitted). 

Here, the majority of the evidence describing the size of the tract of 

land involved in the parties' dispute used acres as the relevant 

measurement. While the title abstract attached to the Plaintiffs' complaint 

did refer to a metes and bounds description of the property, the court 

concluded that to describe the land in a way other than the more commonly 

used term of acreage would run the risk of confusing the jury. We agree 

and find that the court's instruction, as a whole, was adequate and the 

omission of a metes and bounds charge was not fundamental error. 

Passarello, supra; Pringle v. Rapaport, 980 A.2d 159, 173 (Pa. Super. 

2009) (purpose of charging jury is to clarify issues which jurors must 

determine). 

F. Preclusion of Recovery for Mesne Profits 

In their final claim on appeal, Plaintiffs argue that the court improperly 

precluded them from seeking mesne profits or damages where "those items 

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were placed at issue based on the material facts alleged." Plaintiff's Brief on 

Appeal, at 12. 

Mesne profits are defined as "[i]ntermediate profits; profits accruing 

between two points of time. Profits accruing from land during an 

intermediate period, such as a period of tortious holding by the defendant in 

an action in ejectment." 25 Am J2d Eject § 148. 

If a plaintiff in ejectment does not declare or give notice of a 

claim for mesne profits, he can, after judgment in ejectment, 

sue in trespass vi et armis for such damages. The notice or 

declaration for mesne profits in the ejectment action is but a 

permissive right to consolidate a claim for trespass vi et armis 

with the action of ejectment. The Act of 1876, P. L. 95, Pa. Stat. 

Ann. tit. 12, § 1557, making it lawful for a plaintiff to give notice 

or declare for mesne profits in an action of ejectment, is 

permissive and not mandatory, and the Act itself was but 

declaratory of decisional law. 

Crecium v. McCann, 67 A.2d 622 (Pa. Super. 1949). 

In their ejectment action, Plaintiffs included an ad damnum clause 

seeking "possession of the above -captioned real property, for costs, counsel 

fees and such other further relief as this Court deems just and appropriate." 

Plaintiffs' Complaint, 2/3/12, at 27. Plaintiffs, however, did not specifically 

seek mesne profits in their complaint. See Reilly v. Crown Petroleum 

Co., 63 A. 253, 254 (Pa. 1906) (after recovery in ejectment, trespass is 

proper remedy to recover mesne profits of land taken by adverse claimant in 

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possession of premises). Therefore, Plaintiffs could have timely' amended 

their complaint to include a claim for such profits or filed a separate action 

for mesne profits, albeit within the appropriate statute of limitations. Reilly, 

supra; Crecium, supra. Accordingly, the court did not err in preluding 

Plaintiffs from recovering mesne profits in their ejectment action. 

II. Creegan's Claims on Cross -Appeal 

A. Compulsory Non -Suit on Counterclaim II 

Creegan contends that the trial court improperly entered nonsuit on 

his counterclaim (Count II - Fraud (contract reformation)) at the 

commencement of trial. Specifically, he asserts that the court prematurely 

dismissed his counterclaim without first hearing evidence on whether 

Creegan was entitled to modification of the contract based on a price 

reflecting the true acreage of the tract. 

Here, Creegan failed to produce competent evidence regarding the 

true value of the property, based on the reduced acreage, to support 

reformation of the parties' agreement. Under such circumstances, the court 

properly granted nonsuit on this claim. See Vicari v. Spiegel, 936 A.2d 

7 The court denied Plaintiffs' last-minute request to amend the ad damnum 

clause to include damages or mesne profits. Cheskiewicz v. Aventis 

Pasteur, Inc., 843 A.2d 1258, 1266 (Pa. Super. 2004) (leave to amend 

complaint is within sound discretion of trial court and should be liberally 

granted; however, where plaintiffs, offhand, sought to add claim outside of 

legal basis of original complaint, denial of amendment was proper). 

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503, 509 (Pa. Super. 2007) (standard of review for entry of a nonsuit is 

well -established, "appellate court reverses only if, after giving appellant the 

benefit of all reasonable inferences of fact, it finds that the factfinder could 

not reasonably conclude that the essential elements of the cause of action 

were established.").8 

B. Grant of Judgment on Pleadings in favor of Plaintiffs 

Finally, Creegan claims that the trial court improperly granted 

judgment on the pleadings in favor of Plaintiffs prior to the commencement 

of trial. Specifically, he contends that the Plaintiffs were not entitled to 

immediate possession of the property on their ejectment action and that 

granting the judgment on the eve of trial, when the pleadings had been 

closed for almost three years, was error. 

Pursuant to Pa.R.C.P. 1034, "[a]fter the relevant pleadings are closed, 

but within such time as not to unreasonably delay the trial, any party may 

move for judgment on the pleadings." Pa.R.C.P. 1034(a) (emphasis added). 

An appellate court will reverse a trial court's grant of judgment on the 

8 In any event, the remedies of reformation and rescission both could not 

have gone before the factfinder; thus, the court properly precluded the 

remedy of reformation from going before the jury. See Wedgewood 

Diner, Inc., supra at 538 (party cannot, in the assertion or prosecution of 

his rights, maintain inconsistent positions; to allow party to allow both 

rescission and reformation of contract for fraud would "allow a double 

remedy for the same wrong."); but see 25 Am.Jur.2d Election of Remedies, 

§ 16 ("where there is nothing more than the mere institution of a suit or 

proceeding, which is abandoned or dismissed before judgment, there is 

nothing on which to base an estoppel - no benefit and no detriment."). 

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pleadings only where a clear error of law has been committed or where there 

were facts disclosed by the pleadings that should have been resolved by the 

jury. Gardner v. Erie Ins. Co., 691 A.2d 459 (Pa. Super. 1997), aff'd 722 

A.2d 1041 (Pa. 1999). Here, the trial court did not err in considering 

Plaintiffs' motion before trial where Creegan has failed to show how the June 

2015 filing unreasonably delayed trial or how he was prejudiced by the 

filing.9 Pa.R.C.P. 1034(a). 

Moreover, having determined that the contract should be rescinded 

based upon Plaintiffs' fraud, the court properly returned possession of the 

property to Plaintiffs to restore the status quol° See Wedgewood Diner, 

supra. 

Judgment affirmed. 

9 We note that the court set a deadline of July 1, 2015 for all filing of 

dispositive pre-trial motions. Plaintiffs' motion was timely filed prior to the 

deadline, on June 11, 2015. 

10 Here, the court prematurely returned possession of the property to Sellers 

prior to trial and before the jury determined that the contract was voidable 

for fraud and should be rescinded. However, because the Sellers were 

entitled to possession of the property upon rescission of the agreement and 

the return of all monies paid by Buyer, any error was harmless. 

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Judgment Entered. 

J seph D. Seletyn, 

Prothonotary 

Date: 4/4/2017 

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