J

### -A23014-16
NON-PRECEDENTIALDECISION - SEE 

### SUPERIORCOURT

### I.O.P. 

### 65.37 JAN M. CHASE, PERSONAL REPRESENTATIVE OFTHE ESTATE OF CHRIS S. CHASE, CHRIS S. CHASE FAMILY ENTERPRISES, LLC,AND LARRY D. FRAZEE

v. DAVID M. CREEGAN 

### Appellants IN THE SUPERIORCOURT OF PENNSYLVANIA

Appellee No. 1681 WDA 2015 Appeal

### fromtheJudgment Entered October 16, 2015 Inthe CourtofCommon Pleas of Bedford County Civil Division

### at No(s): 136 

### for2012

JAN M. CHASE, PERSONAL REPRESENTATIVE OFTHE ESTATE OF CHRIS S. CHASE, CHRIS S. CHASE FAMILY ENTERPRISES, LLC,AND LARRY D. FRAZEE

v. DAVID M. CREEGAN Appellees



### Appellant IN THE SUPERIORCOURT OF PENNSYLVANIA

No. 1757 WDA 2015 Appeal

### fromtheJudgment Entered October 16, 2015 Inthe CourtofCommon Pleas of Bedford County Civil Division at No(s): 136 

### fortheyear2012J

### -A23014-16

BEFORE: LAZARUS,J., STABILE, J., and STRASSBURGER, J.* MEMORANDUM BY LAZARUS, J.: 

### FILED

### APRIL04, 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 ofsale and oil and gas leases on the 

### tract indicated 

### that the 

### property consisted of 

### 448.75 acres, it 

### actuallyconsisted 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 ofthe 

### agreement and byJanuary 9, 

### 2009; and a balloon 

### payment

* Retired SeniorJudgeassigned tothe Superior Court.

1 

### PlaintiffChris Chase passed awayduring the pendency ofthe action.

2

### Althoughtheactual

### document is

### titled "Contract for Deed,"we havechosen to use the more universal 

### term, "agreement of 

### sale," 

### throughout this memorandum. 

## -2J

### -A23014-16

was due by

### January 1, 2010, which included the 

### remainderofthe purchase price and 6% 

### interest. In 

### addition, Creegan was to pay all taxes and assessments levied 

### againstthe 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 saledate. In the event of

### default, Creegan wasto

### forfeit any and all 

### payments made underthe

### terms of

### thecontract, 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 checkwas 

### returned 

### for insufficientfunds. In 

### early February 2008, Creegan discovered the acreage discrepancy 

### after reviewing a 

### property survey 

### that had been prepared in October 2007

### for PlaintiffChris 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) byApril 7, 2010, 

### thatthe deadline

### for thefinal 

### paymentwould be extended to October 7, 2010. The 

### letter also indicated 

### thatthe 

### interest rate would 

### retroactively increase

### from6% to 

### 7%,effectiveJanuary 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

- 3 -J

### -A23014-16
September 10, 2011, under

### threeconditions: (1) 

### paymentof$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 

### thatfinal payment was due in the 

### amount of 

### $214,502.25 and demanded 

### immediate possession 

### ofthe 

### 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." Letterto Creegan, 

### 5/12/11. On February 6, 

### 2012, Plaintiffs filed an action in 

### ejectment against Creegan, seeking the 

### courtto

### "restor[e] plaintiffsto the possession ofthe

. .

. 

### property" and 

### "for costs, counsel fees and such 

### other and 

### further reliefthis 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 ofthe 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 

### correctamountofacresofthe

### tract. 

## -4J

### -A23014-16

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 

### thatafter hewas 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

### theiranswer to Creegan's

### counterclaims, Plaintiffsaverred: 

### 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 

### ofthe 

### surveywas 

### provided 

### to Counterclaim 

## plaintiff indicating the actual acreage beingsold. 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 20of

### theiranswer: The 

### plaintiffs [including Larry Frazee] along 

### with the defendant gathered at a 

### table in the basement of 

### [4976 White Rock Road,

- 5 -J

### -A23014-16 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 priorto closing. 

### Plaintiffs'Answersto 

### 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 ofthe 

### contract;" granting 

### judgment on the pleadings in 

### favor of Plaintiffs, ejecting Creegan 

### from the premise and giving Plaintiffs possession ofthe 

### property; and denying the 

### parties' request

### for counselfees 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 ejectmentaction.


## -6J

### -A23014-16
$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, Plaintiffsfiled a notice

### ofappeal;
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-appealfollow. On appeal, Plaintiffs 

### presentthefollowing issues

### for ourconsideration: (1) Did the 

### trial court err in refusing to 

### grant 

### judgment in 

### favor of the 

### plaintiffs on the counterclaim 

### for unjust enrichmentwhere 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 

### readilydeterminable 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)

5This 

### figure representsthe 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 befiled

### within 14 days

### ofdate on which

### firsttimely notice

### ofappeal 

### served). 

## -7J

### -A23014-16

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 courterr 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

### quantityofacreage? Did the 

### trial court err by refusing to give the 

### jury an 

### instruction regarding a rule 

### ofconstruction 

### for interpreting a legal 

### descriptionwhen 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 courterr by precluding the 

### Plaintiffs' claim

### for damages or mesne 

### profits on 

### [the] basis of a label in the captionwhere the facts alleged in the 

### complaint gave rise to a claim

### foreither? (5)

On cross-appeal, Creegan presentsthe

### following issues

### forour 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 atthe 

### 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 

## -8J

### -A23014-16 [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 ofthe 

### 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 

### afterthe relevant pleadingswere 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) theTrial Courtdeclinedto vacatethe

### judgment soentered. I. 

### Plaintiffs'Claims onAppeal A. 

### UnjustEnrichment Plaintiffs 

### first assert 

### that the 

### trial court erred in failing to 

### grant 

### judgment in 

### theirfavor on Creegan's 

### unjust enrichmentclaim. Specifically, Plaintiffs claim 

### that because 

### they "conclusively established 

### that the relationship of the parties was founded upon an express 

### written contract," Plaintiffs' Brief, at4,

### there is no need to 

### imply a 

### contractunderthe equitable doctrine of

### unjustenrichment. 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 enrichmentare: (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 itwould be 

### inequitable

### fordefendant to retain the 

### benefit 

### without payment of value. The 

## -9J

### -A23014-16 application of the 

### doctrine depends on the 

### particular factual circumstances of the case at issue. 

### In determining 

## ifthe doctrine applies, 

### ourfocus is 

### not on 

### the 

### intention of the parties, but 

### rather on 

### whetherthedefendanthasbeen 

### unjustlyenriched. 

### 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. 

### FarmersPride,

### Inc., 967 A.2d 963 (Pa. Super. 

### 2009). Finally, a

### victim offraud inthe 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 Creeganwas 

### 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 ofthe contract. 

### WedgewoodDiner, 

### 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; Plaintiffswere given possession 

### of the 

### property and Creegan was reimbursed all his monies paid under the agreement.

- 10 -J

### -A23014-16
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

### thatwhere Plaintiffs benefitted fromthese 

### improvements, in 

### order to be 

### equitable, Creeganwas 

### 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 havesucceeded on

### thiscounterclaim.J

### -A23014-16

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 recklessnessas to 

### whether it is 

### true orfalse; (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. 

### ManufacturersLife

### InsuranceCo., 881A.2d 822 (Pa. Super. 

### 2005). In a case

### offraud 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

- 12 -J

### -A23014-16

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

### forthe 

### 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 buythe 

### tract. As the 

### trial court points out, it is unreasonable to
assume

### that a buyer, underthe circumstances, would be ableto discern 

### with the naked eye

### whether a given 

### tract of land is 

### four hundred ortwo 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

### priororalrepresentations,yet sign realestate 

### contract denyingthose 

### representations regarding sump pits and pumps being non

### -operational and unnecessary; fact 

### that seller did not 

### affirmatively disclose 

### pumps'

- 13 -J

### -A23014-16
functionality irrelevant when buyers could have observed physical 

### condition of

### property and madeown reasonable inferences 

### about pumps). C. 

### LiabilityWitnesses 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 

### thatthe 

### trial court incorrectly determined

### thattheirtestimonyshould not be 

### permitted at 

### trial because Plaintiffs violated discovery rules by not 

### specificallylisting

### theirexact

### testimony in an answerto 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 statementfiled inJuly 2015, hewas 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 ofsale 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.TJuryTrial, 

### 8/17/15, at5-6. In

### Gillv. 

### McGraw

### ElecticalCo., 399 A.2d 1095 (Pa. Super 1979) (en banc), our 

### Court set 

### forth the factors a 

### court must consider in 

### determining

- 14 -J

### -A23014-16

whether or not a witness should be precluded 

### for failure to 

### comply with discoveryrules: (1) the prejudice or surprise in 

### fact of the 

### party against whom the excluded witnesses would have 

### testified[;] (2) the 

### ability of 

### that partyto cure 

### the

### prejudice[;] (3) the

### extentto which

### waiver of the rule 

### against calling unlisted witnesses would 

### disrupt the 

### orderly and 

### efficienttrial of the case or of cases in the 

### court[; and] (4) bad 

### faith or 

### willfulness in failing to 

### comply with the court'sorder. 

### 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'Answerto

### Counterclaim, 

### 5/21/12, at ¶ 20. Rather, 

### Plaintiffs' answer to 

### that specific 

### interrogatory states, in 

### relevantpart: 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 priorto closing. 

### Plaintiffs'Answersto 

### Interrogatories, 

### 1/31/13, at ¶ 

### 24(d). Therefore, while Creegan had notice 

### that these witnesses may be called at 

### trial to 

### provide 

### testimonywith regard to 

### liability and damages, he had no idea 

### until two weeks before 

### trial 

### thatthe Plaintiffs intended to 

### offer

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### -A23014-16
Brian Freeze's 

### testimonyto 

### 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) 

### andNissley 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 

### IncurredAfter Creegan had 

### Notice

### of Acreage Discrepancy

- 16 -J

### -A23014-16

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 inaccuracywould be addressed. 

### Therefore, itwas reasonable 

### forthe

### 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 

### meritto this claim on appeal.
E. 

### Jury

### InstructionforMisrepresentation

### ofAcreage Plaintiffs claim

### thatthe

### trial court erred in refusing to 

### instruct the

### jury
on a legal 

### description ofthe land in metes and bounds 

### terms, rather than solely acres. Plaintiffs claim 

### that therewas 

### factual support in 

### the record to 

### warrant a metes and bounds charge, specifically the 

### title abstract, and 

### that such a chargewould 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 ifthe charge as a whole is inadequate or not clear or has a 

### tendency to

- 17 -J

### -A23014-16
mislead orconfuse 

### ratherthan 

### clarify a 

### material issue. Error will be found where the

### jury was 

### probably 

### [misled] by

### whatthe

### trial judge charged orwhere 

### there was an omission in the charge. A charge will be found adequate unless the issues are not made cleartothe

### juryorthe

### jury was palpably misled by

### whatthetrial 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, 87A.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 

### thatto describethe land in away

### 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

### ofRecovery

### for Mesne 

### Profits In 

### theirfinal claim on appeal, Plaintiffs argue

### thatthe 

### court improperly precluded 

### them from seeking mesne 

### profits or damages where

### "those items

- 18 -J

### -A23014-16

were placed at issue based on the 

### material facts

### alleged." Plaintiff's Briefon 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. TheAct

### of 1876, P. L. 95, Pa. Stat. Ann. 

### tit. 12, § 1557, making it lawful

### for a 

### plaintiffto give notice or declare 

### for mesne 

### profits in an action 

### of 

### ejectment, is permissive and not 

### mandatory, and the Act 

### itself was but 

### declaratoryofdecisional law. 

### Crecium v. 

### McCann, 67A.2d 622 (Pa. Super. 1949). In 

### their ejectment action, Plaintiffs included an 

### ad damnum clause seeking "possession 

### ofthe 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 remedyto recover mesne 

### profits of land taken byadverse 

### claimant in

- 19 -J

### -A23014-16
possession 

### of premises). Therefore, Plaintiffs could have 

### timely' amended 

### their complaint to include a claim

### for such 

### profits orfiled a separate action 

### for mesne 

### profits, albeitwithin the

### appropriatestatute of

### limitations. 

### Reilly, supra; Crecium, 

### supra. Accordingly, the court did not 

### err in preluding Plaintiffs

### from recoveringmesne 

### profits in 

### theirejectmentaction. 

### II. Creegan's Claimson Cross-Appeal A. 

### Compulsory Non

### -Suiton

### 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 

### thatthe 

### 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

### ofthe

### tract. Here, Creegan failed to produce 

### competent evidence regarding the 

### true value of the 

### property, based on the reduced acreage, to 

### support reformation ofthe 

### 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 

### addamnum 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, soughtto add claim outside of legal basisof

### originalcomplaint, denial of

### amendmentwas 

### proper).

- 20 -J

### -A23014-16

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

### ofJudgmenton 

### Pleadingsin

### favorofPlaintiffs 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 almostthreeyears,was 

### error. Pursuant to Pa.R.C.P. 1034,

### "[a]fter the relevant pleadings are closed, 

### but within such 

### time as 

### not to 

### unreasonably delaythe 

### trial, any 

### party may move

### for

### judgment onthe 

### pleadings." Pa.R.C.P. 

### 1034(a) (emphasisadded). 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 

### forthe same

### wrong."); 

### butsee 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 onwhich to base an estoppel

## - no 

### benefitand no

### detriment.").

- 21 -J

### -A23014-16
pleadings 

### onlywhere a clear

### errorof law has been 

### committed orwhere

### there
were facts disclosed by the pleadings

### that should have been resolved by the 

### jury. 

### Gardnerv. 

### 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 howthe 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 

### WedgewoodDiner, supra. Judgmentaffirmed.

9 We note 

### that the 

### court set a deadline of July 1, 2015 

### for all 

### filing of 

### dispositive 

### pre-trial motions. 

### Plaintiffs' motion was 

### timelyfiled 

### prior to the deadline, onJune 11, 2015.
10 Here,the 

### courtprematurely returned possession ofthe 

### propertyto 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 

### ofthe 

### agreement and the 

### return ofall monies paid by Buyer, any

### errorwas harmless.

- 22 -J

### -A23014-16 Judgment Entered.

J seph D. 

### Seletyn, Prothonotary

Date: 

### 4/4/2017

- 23 -