J-A26020-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EDWARD H. JANUSEY AND DEBORAH 

H. JANUSEY, HIS WIFE 

Appellants

v.

DEAN M. GROSE AND VALERIE J. 

GROSE, HIS WIFE

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 208 WDA 2019

Appeal from the Order Entered January 9, 2019

In the Court of Common Pleas of Washington County Civil Division at 

No(s): No. 2014-1048

EDWARD H. JANUSEY AND DEBORAH 

H. JANUSEY, HIS WIFE

v.

DEAN M. GROSE AND VALERIE J.

GROSE, HIS WIFE 

Appellants

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 286 WDA 2019

Appeal from the Order Entered January 9, 2019

In the Court of Common Pleas of Washington County Civil Division at 

No(s): 2014-1048

BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 26, 2019

Edward H. Janusey and Deborah H. Janusey (h/w) (the 

Januseys/Sellers/Plaintiffs) appeal and Dean M. Grose and Valerie J. Grose 

(h/w) (the Groses/Buyers/Defendants) cross-appeal from the trial court’s 

order denying the Groses’ motion for reconsideration of the order striking the 
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jury’s punitive damages award and denying the Januseys’ motion contesting 

an award of attorney’s fees and costs in favor of the Groses. After careful 

review, we affirm.

On May 13, 2013, the Groses entered into two agreements of sale with 

the Januseys for the purchase of property located in Washington County. The 

total sale price for the property was $4,999,999. The first agreement 

indicated that the property would be subdivided into two lots (Lot 1 and Lot 

2). Lot 1 consisted of an 18.15 acre parcel with a large residence; the 

purchase price for Lot 1 was $3,300,000. Lot 2 consisted of 79.75 acres of 

land; the purchase price for Lot 2 was $1,699,999. In two separate deeds, 

each dated June 21, 2013, the Januseys conveyed the two lots to the Groses; 

each lot had its own tax identification number. 

The purchase of both Lots occurred simultaneously; however, the 

Groses financed the purchase of Lot 2 as a purchase money mortgage with 

payment of the Note on Lot 2 due in full on or before December 31, 2013. At 

closing, the Groses signed a Term Note outlining the terms of the sale for Lot 

2. The oil and gas under both lots were assigned by the Januseys to the 

Groses as part of the Lot 2 transaction.1 

The Groses moved into the home on Lot 1 in early fall 2013 and 

performed minor renovations. In December 2013, a water pipe in the 

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1 Separate documents were executed for the Lots and the oil and gas 

conveyance. On December 18, 2013, the Groses executed an oil and gas 

lease with a third party for the rights on both Lots. 
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residence froze on two different occasions. On January 7, 2014, a water pipe 

burst in the residence causing water to flood the kitchen area. The Groses 

hired a specialist to remediate the water damage to the home. As a result of 

the burst pipe, the Groses withheld their payment on Lot 2 and demanded

that the Januseys correct the house’s heating and plumbing systems.

2

 The 

Januseys declined to fix the problem and demanded payment on Lot 2. When 

the Groses continued to withhold payment, the Januseys filed an assumpsit 

action on February 26, 2014, seeking payment of the principal amount of Lot 

2, with interest3 and reasonable out-of-pocket expenses. The Groses filed an 

answer, new matter, and counterclaims alleging breach of contract, fraudulent 

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2

In the Seller Disclosure Statement executed by the Januseys, they indicated 

that they were not aware of “any water leakage, accumulation or dampness 

within the basement, garage or crawl space, any past or present water leakage 

in the house or other structure, any water . . . damage to the property, any 

leaks or other problems, past or present, related to the water supply, pumping 

system, well and related items, any problems with any of [the] plumbing 

fixtures, any problems with any water heater or related equipment, and any 

problems or repairs needed regarding [the heating system].” West Penn 

Multi-List, Inc. Seller Disclosure Statement, 4/8/13, at ¶¶ 4(e), 6(a), 6(h), 

8(h), 10(b), 11(b), and 13(h).

3 The parties’ agreement for Lot 2 includes the following language:

If any amount of principal due under this Note or otherwise is not 

paid by [the Groses] when due, whether at the stated maturity of 

this Note, by acceleration, or otherwise, such amount shall bear 

interest until paid at a rate per annum which is 10 percent (10%). 

Such sums shall be immediately due and payable without demand 

or notice by [the Januseys].

Term Note, 6/21/13, at 1 (emphasis added).
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and negligent misrepresentation, and violations of Pennsylvania’s Real Estate 

Seller Disclosure Law (RESDL)4 and the Unfair Trade Practices and Consumer 

Protection Law (UTPCPL).5 Specifically, the Groses claimed that the Januseys 

failed to disclose a material defect in the home, namely that certain pipes and 

utilities were located in under-heated and under-insulated eaves of the roof 

of the home that exposed the heating and plumbing equipment to the 

elements and put the equipment at risk for freezing and bursting when the 

outside temperature fell below freezing.6 Groses’ Answer, New Matter and 

Counterclaim, 3/25/14, at ¶ 6.

The Januseys filed a motion for judgment on the pleadings in June 2014; 

the court denied the motion in January 2015. In July 2016, the Januseys filed 

a motion for summary judgment claiming that the Lot sales were completely 

separate and distinct transactions; the court denied the motion on July 19, 

2016. On April 7, 2017, the Januseys filed motions in limine and a second 

motion for summary judgment. The Januseys’ motions in limine sought, in 

part, to exclude the proposed testimony and expert report of David J. Bizzak, 

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4 68 Pa.C.S. §§ 7301-7315.

5 73 P.S. §§ 201-1-201-9.3.

6 The initial residence, built by Mr. Janusey’s company, was designed and 

constructed to include a utility chase that ran through the residence. The 

original residence, however burned to the ground by an act of arson in May 

2001. The construction of a second home, the one purchased by the Groses, 

did not include a utility chase.
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a professional engineer, who opined that a material defect7 existed in the 

residence as a result of improperly placed water supply pipes. The Januseys 

argued that without that evidence, the Groses could not prove the existence 

of a material defect under RESDL to justify withholding payment for Lot 2. On 

May 10, 2017, the trial court denied the motions in limine, and, concomitantly, 

the summary judgment motion. 

The case proceed to a jury trial, after which the jury found in favor of 

the Groses, concluding that they were entitled to rescission of the entire 

transaction8 (Lot 1 and Lot 2), punitive damages (for all legal fees) due to the 

Januseys’ fraudulent representations, and $4,952.69 in costs and expenses 

related to the sale of the property. The jury made the following findings of 

fact: (1) the sale of Lot 2 was not a separate transaction from the sale of Lot 

1; (2) the Groses were not justified in withholding payment for Lot 2; (3) the 

Januseys violated the RESDL and UTPCPL; (4) the Januseys breached the 

agreements of sale; and (5) the Januseys made fraudulent and negligent 

misrepresentations to the Groses. Verdict and Interrogatories to the Jury, 

9/22/17, at 1-3. The Januseys filed post-trial motions and the Groses filed a 

motion for treble damages, attorney’s fees and expenses for costs related to 

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7 The agreement for Lot 1, which included the residence, provided that the 

“Sellers have no knowledge, nor have they received any notice, of any 

material defect in any of the Property.” Agreement of Sale (Lot I), 5/13/13, 

at ¶ 5(d).

8 This not only included returning the property to the Januseys, but also all of 

the money that the Groses received from the gas lease.
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the transaction. The court granted the Groses’ motion in part, awarding them 

$114,848.88 in attorney’s fees and transaction expenses, and $308,976.02 

for attorney’s fees and litigation expenses under the UTPCPL, and denied it in 

part, declining to award the Groses treble damages. The court denied the 

Januseys’ post-trial motion. The parties filed a timely appeal and crossappeal, as well as court-ordered Pa.R.A.P. 1925(b) concise statements of 

errors complained of on appeal.

On appeal, the Januseys present the following issues for our 

consideration:

(1) Did the trial court abuse its discretion by failing to grant 

summary judgment, or decide as a matter of law, that the 

sale of the 80-acre, unimproved Lot 2 was a separate 

transaction from the sale of the residential Lot 1?

(2) Did the trial court abuse its discretion by permitting the 

[Groses] to pursue rescission and breach of contract claims 

simultaneously at trial?

Appellants’ Brief, at 4. On cross-appeal, the Groses raise the following claims:

(1) Did the [trial] court err in striking the jury’s award of 

punitive damages to the Groses for the Januseys’ fraudulent 

misrepresentation?

(2) Did the [trial] court err in failing to award treble damages 

under the UTPCPL, 73 Pa.C.S. §§ 201-1[,] et seq.?

Cross-Appellants’ Brief, at 5.

The Januseys claim that the trial court erred in denying their motion for 

summary judgment, arguing that the sale of Lot 2 was a separate transaction 

from the sale of Lot 1. Assuming the two transactions were separate, the 

Januseys contend that the agreement for Lot 2 is unaffected by the agreement 
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for Lot 1 and that an alleged material defect in the house (Lot 1) is irrelevant 

to their action in assumpsit on the term note for Lot 2.

The standard of review for motions for summary judgment is 

well[-]settled. Pursuant to Pa.R.C.P. 1035.2(2), a trial court shall 

enter judgment if, after the completion of discovery, an adverse 

party who will bear the burden of proof at trial fails to produce 

evidence of facts essential to the cause of action or defense which 

in a jury trial would require the issues to be submitted to the jury. 

Summary judgment is properly granted when the record contains 

insufficient evidence of facts to make out a prima facie cause of 

action or defense, and, therefore, there is no issue to be submitted 

to a jury. 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. The party with the burden of proof on 

an issue may not rely merely on the allegations in its pleadings, 

but rather must produce evidence of facts demonstrating a 

genuine issue for trial.

Phillips v. Selig, 959 A.2d 420, 427 (Pa. Super. 2008) (citations and 

headnotes omitted). “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. Notwithstanding, the scope of review is plenary and the appellate 

court shall apply the same standard for summary judgment as the trial court.” 

Id. at 428 (citations omitted).

In its memorandum order denying the Januseys’ summary judgment 

motion, the trial judge, the Honorable Katherine B. Emery, found that the 

court was bound by the coordinate jurisdiction rule where a prior trial court 

judge, the Honorable Debbie O’Dell Seneca, had denied the Januseys’ motion 
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for judgment on the pleadings based on the same legal argument that the sale

of the lots consisted of two separate transactions. Judge Emery concluded 

that although additional evidence existed now, in the form of Dean Grose’s 

deposition testimony, this information did not “contain[ any] new information 

material to the case.” Memorandum Order, 7/19/16. 

Generally, the coordinate jurisdiction rule commands that upon transfer 

of a matter between trial judges of coordinate jurisdiction, a transferee trial 

judge may not alter resolution of a legal question previously decided by a 

transferor trial judge. Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 

1995); see also Riccio v. American Republic Insurance Co., 705 A.2d 

422, 425 (Pa. 1997). More simply stated, judges of coordinate jurisdiction 

should not overrule each other’s decisions. Id.; Okkerse v. Howe, 556 A.2d 

827, 831 (Pa. 1989). Some exceptions to the general rule, however, exist

such as when there has been a substantial change in the facts or evidence or 

where “the prior holding was clearly erroneous and would create a manifest 

injustice if followed.” Starr, 664 A.2d at 1332. In Goldey v. Trustees of 

University of Pennsylvania, 675 A.2d 264 (Pa. 1996), our Supreme Court 

also noted that 

[w]here motions differ in kind, as preliminary objections differ 

from motions for judgment on the pleadings, which differ from 

motions for summary judgment, a judge ruling on a later motion 

is not precluded from granting relief although another judge has 

denied an earlier motion. However, a later motion should not be 

entertained or granted when a motion of the same kind has 

previously been denied, unless intervening changes in facts or the 

law clearly warrant a new look at the question.
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Id. at 267 (emphasis in original). 

Here, the motions, which raised identical issues and were based on 

virtually the exact same evidence, were not “of the same kind” as referenced 

in Goldey. Moreover, in this case where Judge O’Dell Seneca denied the 

Januseys’ motion for judgment on the pleadings by a single order and without 

any accompanying opinion or legal explanation, we are hesitant to simply rely 

upon Judge Emery’s blanket statement that she cannot reconsider the decision

based upon the coordinate jurisdiction rule.

However, after reviewing the record, we find that the court properly 

denied summary judgment.9 First, the question of the interpretation of a 

contract is often a jury question. Kripp v. Kripp, 849 A.2d 1159, 1164 (Pa. 

2004) (under Pennsylvania law, interpretation of contract is matter for fact

finder when contract is ambiguous). Here, the Januseys contend that the 

Groses defaulted on the Term Note, where the Term Note and the Agreement 

for Lot 2 was a separate transaction from the Agreement for Lot 1. The 

Groses, on the other hand, contend that the Lot 1 and Lot 2 Agreements 

represented a single transaction and that because the Januseys concealed a 

defect in the house that caused the Groses harm, they were justified in 

withholding payment due on Lot 2. 

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9 We are not limited by the trial court’s rationale and may affirm its decision 

on any basis. Blumenstock v. Gibson, 811 A.2d 1029, 1033 (Pa. Super. 

2002).
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Because the agreements, on their faces, do not clarify the issue, they 

are considered ambiguous. Hutchinson v. Sunbeam Coal Corp., 519 A.2d 

385, 390 (Pa. 1986) (contract is ambiguous if reasonably susceptible to 

different constructions and capable of being understood in more than one 

sense). As a result, in order to understand the circumstances under which 

the contract was made, the fact finder had to examine the intent of the parties. 

Thus, where the case involved a material question of fact which needed to be 

resolved by the jury, summary judgment was properly denied. Windows v. 

Erie Ins. Exch., 161 A.3d 953 (Pa. Super. 2017), citing Metzger v. Clifford 

Realty Corp., 476 A.2d 1 (Pa. Super. 1984).

In their next issue on appeal, the Januseys claim the trial court abused 

its discretion when it permitted the Groses to pursue rescission and breach of 

contract claims simultaneously at trial.

We first note that our Court has held that a party is permitted to plead 

and pursue alternative and inconsistent claims seeking remedies of damages 

for breach of contract and for rescission of a lease. Scheartz v. Rockey, 932 

A.2d 885 (Pa. 2007). Moreover, here the underlying agreements of sale 

provided for rescission as a contractual remedy, and not an equitable remedy. 

Thus, we find no merit to this issue.

On cross-appeal, the Groses claim that the trial court improperly struck 

the award of punitive damages after the jury determined that the Januseys 

committed fraudulent misrepresentation.
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Here, the jury determined that the Groses were entitled to punitive 

damages for “ALL legal fees.” See Verdict and Interrogatories to the Jury, 

9/22/17, at 3 (emphasis in original). In the brief supporting their motion for 

attorney’s fees, costs and treble damages, the Groses sought “an award of all 

their transaction costs associated with the agreement to purchase the 

Residence, totaling $114,848.58, per the jury’s punitive damages award.” 

Groses’ Brief in Support of Motion for Award of Treble Damages, Attorneys’ 

Fees and Costs, 10/2/17, at 2 (emphasis added). The Groses also argued in 

their motion that the court should “mold the final judgment entered in th[e] 

case to conform to the verdict rendered by including all of the Groses’ 

attorneys’ fees and costs expended to enter the transaction and litigate this 

case.” Id. at 4; see also id. (Argument III, Section A. of Groses’ motion

titled “All of the Groses’ Attorney’s Fees and Costs were Awarded by the Jury 

as Punitive Damages.”)

Instantly, the court did exactly what the Groses asked for – it awarded 

them reasonable attorneys’ fees and costs under the UTPCPL, as well as all of 

their transaction costs associated with the purchase agreement. The court’s 

total award was broken down as follows: $114,848.58 in attorneys’ fees and 

expenses associated with entering into the transaction and $308,967.02 in 

attorneys’ fees, costs and expert fees under the UTPCPL.10 See Trial Court 

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10 See 73 Pa.C.S.A. § 201-9.2(a).
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Pa.R.A.P. 1925(a) Opinion, 6/3/19, at 1-2 (emphasis added). Because the 

court awarded the Groses the exact amount of damages they sought, we find 

this claim meritless.11 

In their final claim on cross-appeal, the Groses assert that they were 

entitled to treble damages under the UTPCPL where the Januseys committed 

fraudulent misrepresentation.

Under the UTPCPL, “[t]he court may, in its discretion, award up to three 

times the actual damages sustained, but not less than one hundred dollars 

($100), and may provide such additional relief as it deems necessary or 

proper. The court may award to the plaintiff, in addition to other relief 

provided in this section, costs and reasonable attorney fees.” 73 Pa.C.S.A. § 

201-9.2(a). In Johnson v. Hyundai Motor Am., 698 A.2d 631 (Pa. Super. 

1997), our Court stated:

It is undisputed that the imposition of exemplary or treble 

damages is essentially punitive in nature. The law of Pennsylvania 

clearly provides, however, that punitive damages are not 

recoverable in an action solely based upon breach of contract. 

Thorsen v. Iron and Glass Bank, [] 476 A.2d 928, 932 ([Pa. 

Super.] 1984). See Standard Pipeline Coating Co. v. 

Solomon & Teslovich, Inc., [] 496 A.2d 840, 844 ([Pa. Super.] 

1985) (holding “punitive damages will not be assessed for mere 

breach of contractual duties, where no recognized trespass cause 

of action . . . arose out of the same transaction[.]”). Whereas in 

contract actions, damages are awarded to compensate an injured 

party for the loss suffered due to the breach, Empire Properties, 

Inc. v. Equireal Inc., [] 674 A.2d 297, 304 ([Pa. Super.] 1996), 

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11 The Groses admit that this claim is moot to the extent that the Januseys do 

not argue the issue of attorneys’ fees under the UTPCPL or as punitive 

damages on appeal. See Cross-Appellants’ Brief, at 3.
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the purpose of punitive damages is to punish outrageous and 

egregious conduct done in a reckless disregard of another’s rights; 

it serves a deterrence as well as a punishment function. Schecter 

v. Watkins, [] 577 A.2d 585, 595 ([Pa. Super.] 1990). Therefore, 

under the law of this Commonwealth, a court may award punitive 

damages only if an actor’s conduct was malicious, wanton, willful, 

oppressive, or exhibited a reckless indifference to the rights of 

others. SHV Coal, Inc. v. Continental Grain Co., [] 587 A.2d 

702, 704 ([Pa.] 1991); Rizzo v. Haines, [] 555 A.2d 58 ([Pa.] 

1989). It is precisely these well-grounded principles of law that 

we expect the trial courts will follow when, as in the instant case, 

exercising discretion and awarding treble damages for breach of 

contract/warranty under the UTPCPL.

Id. at 639-40. 

In Schwartz v. Rockey, 932 A.2d 885, 898 (Pa. 2007), the Court 

concluded that “as a matter of statutory construction, [] the court’s discretion 

to treble damages under the UTPCPL should not be closely constrained by the 

common-law requirements associated with the award of punitive damages.” 

Id. at 898. The Schwartz Court went on to state that “awards of treble 

damages may be reviewed by appellate courts for rationality [and, c]entrally, 

courts of original jurisdiction should focus on the presence of intentional or 

reckless, wrongful conduct, as to which an award of treble damages would be 

consistent with, and in furtherance of, the remedial purposes of the UTPCPL.” 

Id. (emphasis added).

Here, the jury found that the Januseys made fraudulent and negligent 

misrepresentations to the Groses in the underlying property transfer. While 

the court declined to treble the damages in the case, it awarded attorneys’ 

fees in excess of $400,000. Under such circumstances, we conclude that the 

trial court’s order denying treble damages was grounded in rationality where 
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there was no specific finding that the Januseys’ conduct rose to the level of

egregious conduct warranting treble damages under the UTPCPL, and where 

the Groses were otherwise adequately compensated for their fees and 

expenses incurred in defending the lawsuit. Schwartz, supra. Accordingly, 

we find no abuse of discretion. Johnson, supra.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/26/2019