J-A27038-15

2016 PA Super 45

JEROME P. OLIVER IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

LARRY M. BALL, DANNY R. BALL, LARRY 

J. BALL AND MARY H. BALL

 v.

JOYCE HARMON AND AL HARMON, 

INDIVIDUALLY AND AS AUTHORIZED 

AGENTS FOR HOWARD HANNA 

COMPANY, T/D/B/A HOWARD HANNA 

COMPANY T/D/B/A HOWARD HANNA 

REAL ESTATE SERVICES

 Appellees No. 1602 WDA 2014

Appeal from the Judgment Entered September 26, 2014

In the Court of Common Pleas of Butler County

Civil Division at No: A.D. No. 09-12349

BEFORE: BOWES, OLSON, and STABILE, JJ.

OPINION BY STABILE, J.: FILED FEBRUARY 19, 2016

Appellant Jerome P. Oliver appeals from the September 26, 2014 

judgment entered in the Court of Common Pleas of Butler County (“trial 

court”), following the denial of his post-trial motion to remove a compulsory 

nonsuit that the trial court granted at the close of his case-in-chief in this 

breach of contract action. Upon review, we reverse.
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The facts and procedural history underlying this case are undisputed.1 

Appellant entered into a sale of real estate contract with Appellees Larry M. 

Ball, Danny R. Ball, Larry J. Ball and Mary H. Ball (“Balls”) for the purchase 

of two tracts of land in Cranberry Township, Butler County, containing 

approximately 71.5 acres (“the Property”). Balls failed to convey the 

Property. Appellant filed suit against Balls for breach of contract, seeking 

specific performance and/or monetary damages. Balls eventually joined as 

additional defendants the parties’ dual real estate agents Joyce Harmon and 

Al Harmon, individually and as authorized agents for Howard Hanna 

Company, t/d/b/a Howard Hanna Company t/d/b/a Howard Hanna Real 

Estate Services (“Hanna defendants”). Balls asserted that the Hanna 

defendants were liable to them for contribution and/or indemnification. 

Appellant’s claim for specific performance was severed from his claim 

for damages and proceeded to a non-jury trial. Following testimony on the 

liability phase, the trial court concluded that a valid and binding contract for 

the sale of the Property existed between the parties, which Balls breached. 

The case next proceeded to the damage phase, at which Appellant testified 

in support of specific performance. In particular, describing the Property, 

Appellant testified that “[i]t was wood[ed] property with some open fields, 

____________________________________________

1 Unless another source is cited, the facts are taken from pages 1 through 3 

of the trial court’s September 22, 2014 opinion and order denying 

Appellant’s motion for post-trial relief. 
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some old farm land, with a, like a wet weather stream running through it. It 

was hilly. Wasn’t terribly hilly but it was sloping like all other property in 

Butler County.” N.T. Trial, 6/17/14, at 341. Appellant testified that he 

planned to purchase the Property for investment purposes. Id. at 342. 

Specifically, he testified that “[m]y plans were to hold it for a long-term 

investment. At that time I was still in the timber business and there was 

some timber on [the Property] that I thought could be harvested.” Id. He 

also testified: 

[a]s a real estate investor [the Property] had a lot of things I 

look for. It was big so it possibly could be subdivided in the 

future for, you know, further development. Of course, it had all 

the mineral rights coming with it so that was something that I 

hoped to put into my business in the future. 

Id. at 342-43. Appellant testified that the location of the Property was 

important to him because it “is only maybe five miles as the crow flies from 

my home so that is important, to try to keep my investments within a 

reasonable distance from my home and where I work.” Id. at 343. 

Explaining why the Property was important to him, Appellant testified:

It’s basically the sum of the parts of this property are much 

more valuable than the whole. So, again, what I have learned 

through 26 years of business and what I have been able to do 

and have learned to do is to take a whole property like this that 

has valuable parts, subdivide those parts, if you will, and have it 

become very strong investment. 

Id. at 347. On cross-examination, Appellant acknowledged that he owns 

investment properties located as far away as Westmoreland and Crawford 

Counties. Id. at 348-49. 
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Following Appellant’s testimony, Balls moved for nonsuit, arguing that 

Appellant failed to establish that he lacked an adequate remedy at law. The 

trial court agreed, granting Balls’ motion for nonsuit and denying Appellant’s 

request for specific performance. Appellant thereafter withdrew his claim for 

monetary damages against Balls. As a result, Balls’ claims for 

indemnification and contribution against the Hanna defendants became 

moot. 

On June 27, 2014, Appellant filed a post-trial motion, seeking the 

removal of the nonsuit. Appellant argued that he was entitled to specific 

performance because the Property was unique and, therefore, his remedy at 

law inadequate. The trial court disagreed, denying Appellant’s post-trial 

motion on September 19, 2014. In so doing, the court observed:

[Appellant] did not offer evidence that the quality, quantity, or 

type of timber on the [P]roperty is unique or unavailable 

elsewhere. [Appellant] did not offer evidence that gas rights are 

not attainable elsewhere in the [c]ounty. [Appellant] did not 

offer evidence that damages for the loss of these assets were 

unquantifiable, such that he does not have an adequate remedy 

at law. [Appellant] did not offer evidence that he would suffer a 

significant difference in purchase price for the purchase of similar 

property in Butler County or that the difference in purchase price 

is not quantifiable. [Appellant] did not offer evidence that the 

value of this specific . . . [P]roperty was unique to him. 

[Appellant] did not offer evidence that the [P]roperty’s terrain 

was especially important to him, or that its location, other than 

being in Butler County and somewhat close to his home, was 

important to him. In sum, [Appellant] did not offer any evidence 

that this [P]roperty had any unique characteristics, of import to 

him, that cannot be found or purchased elsewhere, even within 

Butler County. Further, [Appellant] did not present any evidence 

to establish that the value of the [P]roperty was not quantifiable 

in money damages.
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Trial Court Opinion, 9/22/14, at 9. On September 26, 2014, Balls filed a 

praecipe for entry of judgment in their favor. Appellant timely appealed to 

this Court. The trial court directed Appellant to file a Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal. Appellant complied, raising a 

single assertion of error, namely: 

The [t]rial [c]ourt abused its discretion by entering a nonsuit on 

[Appellant’s] claim for specific performance of an agreement for 

the sale of real estate after finding that a valid and enforceable 

contract for sale of land existed between [Appellant] and [Balls].

Rule 1925(b) Statement. In response, the trial court issued a Pa.R.A.P. 

1925(a) opinion, which largely incorporated its opinion denying Appellant’s 

post-trial motion. 

On appeal,2 Appellant repeats the argument that the trial court abused 

its discretion in granting Balls’ motion for nonsuit and denying his claim for 

specific performance.3 

We are mindful that our standard of review following the denial of a 

motion to remove a compulsory nonsuit is as follows: “This Court will 

reverse an order denying a motion to remove a nonsuit only if the trial court 

____________________________________________

2 To the extent the parties argue that we have jurisdiction over this appeal 

despite the trial court’s failure to rule on Balls’ claims for indemnity and 

contribution against the Hanna defendants, we agree. Here, as noted 

above, Appellant did not succeed against Balls on the underlying action, and 

as a result, Balls’ claims against the Hanna defendants became moot. See 

Appellant’s Brief at 24-27; Appellee’s Brief at 15. Accordingly, this case is 

properly before us. See Pa.R.A.P. 341. 

3 Additional defendants/Appellees did not file a brief in this appeal. 
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abused its discretion or made an error of law.” Brinich v. Jencka, 757 A.2d 

388, 402 (Pa. Super. 2000) (citation omitted), appeal denied, 771 A.2d 

1276 (Pa. 2001). “Judicial discretion requires action in conformity with law 

on facts and circumstances before the trial court after hearing and 

consideration. Consequently, the court abuses its discretion if, in resolving 

the issue for decision, it misapplies the law or exercises its discretion in a 

manner lacking reason.” Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 

(Pa. Super. 2000) (internal citations omitted). The grant of a nonsuit is 

proper where, having viewed all evidence in the plaintiff’s favor, the court 

determines that the plaintiff has not established the necessary elements of 

his cause of action. Brinich, supra; see Pa.R.C.P. No. 230.1. 

With respect to specific performance, our Supreme Court explained in 

Payne v. Clark, 187 A.2d 769 (Pa. 1963):

From the moment an agreement of sale of real estate is 

executed and delivered it vests in the grantee [(purchaser)] 

what is known as an equitable title to the real estate. Thereupon 

the vendor [(seller)] is considered as a trustee of the real estate 

for the purchaser and the latter becomes a trustee of the 

balance of the purchase money for the seller. Hence, if the 

terms of the agreement are violated by the [seller], [the 

purchaser] may go into a court of equity seeking to enforce the 

contract and to compel specific performance.

Payne, 187 A.2d at 770-71 (internal citations omitted). In other words, a 

request for specific performance is an appeal to the court’s equitable powers. 

See Lackner v. Glosser, 892 A.2d 21, 31 (Pa. Super. 2006). Specific 

performance generally is described as the surrender of a thing in itself, 

because that thing is unique and thus incapable—by its nature—of 
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duplication. See Cimina v. Bronich, 537 A.2d 1355, 1357 (Pa. 1988). “A 

decree of specific performance is not a matter of right, but of grace.” 

Barnes v. McKellar, 644 A.2d 770, 776 (Pa. Super. 1994) (citation 

omitted), appeal denied, 652 A.2d 834 (Pa. 1994). Such a decree will be 

granted only if a plaintiff clearly is entitled to such relief, there is no 

adequate remedy at law, and the trial court believes that justice requires 

such a decree. Id. “Inequity or hardship may be a valid defense in an 

action for specific performance and such decree refused if in the exercise of 

a sound discretion it is determined that, under the facts, specific 

performance would be contrary to equity or justice.” Payne, 187 A.2d at 

771. Mere inadequacy of price, however, will not defeat specific 

performance, unless grossly disproportionate. Id. 

Courts in this Commonwealth consistently have determined that 

specific performance is an appropriate remedy to compel the conveyance of 

real estate where a seller violates a realty contract and specific enforcement 

of the contract would not be contrary to justice.4 See Borie v. 

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4 Outside of this Commonwealth, many jurisdictions have espoused a similar 

view where a sale of realty contract is breached. See, e.g., Pardee v. 

Jolly, 182 P.3d 967, 973 (Wash. 2008) (en banc) (“Specific performance is 

frequently the only adequate remedy for a breach of a contract regarding 

real property because land is unique and difficult to value.”) (citation 

omitted); Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153 (Del. 2010) 

(recognizing that “real property is unique and often the law cannot 

adequately remedy a party’s refusal to honor a real property contract.”); In 

re Smith Trust, 745 N.W.2d 754, 759 (Mich. 2008) (“Land is presumed to 

have a unique and peculiar value, and contracts involving the sale of land 

(Footnote Continued Next Page)
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Satterthwaite, 37 A. 102 (Pa. 1897) (affirming specific performance for 

breach of real estate agreement); see also Agnew v. Southern Ave. Land 

Co., 53 A. 752 (Pa. 1902) (noting that a court may enforce specifically only 

an agreement for realty whose terms are definite); Rusiski v. Pribonic, 

515 A.2d 507, 510 (Pa. 1986) (affirming only the award of specific 

performance for breach of a realty agreement); Petry v. Tanglwood 

Lakes, Inc., 522 A.2d 1053, 1055 (Pa. 1987) (noting that real estate 

contracts “have been traditionally regarded as being specifically enforceable 

in equity by the buyer”); Cimina, 537 A.2d at 1360 (reversing this Court’s 

decision to overrule the trial court’s grant of specific performance for a 

breach of realty agreement). As explained in the second restatement:

Contracts for the sale of land have traditionally 

been accorded a special place in the law of 

specific performance. A specific tract of land has 

long been regarded as unique and impossible of 

duplication by the use of any amount of money.

Restatement (Second) of Contracts, §360 cmt. e. As is obvious, specific 

performance for the sale of land is available because no two parcels of land 

are identical. An award of damages will not suffice to allow a plaintiff to 

acquire the same parcel of land anywhere else. Thus, in the context of 

(Footnote Continued) _______________________

are generally subject to specific performance.”); Alba v. Kaufmann, 810 

N.Y.S.2d 539, 540 (N.Y.App.Div. 2006) (noting “the equitable remedy of 

specific performance is routinely awarded in contract actions involving real 

property, on the premise that each parcel of real property is unique.”).
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realty agreements breached by a seller, “we can assume that [a buyer] has 

no adequate remedy at law.” Snyder v. Bowen, 518 A.2d 558, 560 (Pa. 

Super. 1986) (citing 81 C.J.S. Specific Performance § 76 (1977)); cf. Petry, 

522 A.2d at 1055 (“[W]here Appellant is not claiming the right to have 

an estate in land conveyed to her, an automatic right to compel the remedy 

of specific performance cannot be successfully maintained.”).

Instantly, we note that the parties do not dispute that a valid, 

enforceable contract for the Property existed and that Balls breached the 

same by failing to convey the Property.5 The parties also do not argue that 

hardship or injustice would ensue if Appellant’s request for specific 

performance were granted. Rather, the issue on appeal concerns only the 

adequacy of a remedy at law, and as such, involves a question of law. 

Appellant points out that the Property is unique because it had a wet 

weather stream running through it, was hilly, featured timber and other 

minerals, and provided opportunities to him for further development. See

N.T. Trial, 6/17/14, at 341-43. It also was important that the Property was 

only five miles away from his home so that he could keep his investments 

within a reasonable distance from home and work. Id. Appellant 

adequately testified to the unique aspects of the Property and to attributes 

that made the parcel valuable to him. The trial court dismissed this 

____________________________________________

5 Appellant testified that he was ready, willing and able to perform under the 

contract. See N.T. Trial, 6/17/14, at 183-84, 333 (Finding of Fact ¶ 32).
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testimony upon the basis that Appellant did not demonstrate that these 

attributes could not be duplicated elsewhere. Given that all tracts of land 

long have been regarded as unique, and Appellant further testified to the 

Property’s unique characteristics vis-à-vis his needs, we agree with Appellant 

that a remedy at law is inadequate. Accordingly, we reject the trial court’s 

conclusion that Appellant was not entitled to specific performance because 

the Property did not have any unique characteristics that could not be found 

or purchased elsewhere. We conclude that, based on our review of pertinent 

case law, the trial court erred in denying Appellant’s claim for specific 

performance and granting Balls’ motion for nonsuit. As stated, courts in this 

Commonwealth must enforce specifically realty agreements breached by 

sellers, except in cases where hardship or injustice would result. See, 

Snyder, supra; Petry, supra. 

We reject Appellees’ and the trial court’s suggestion that Boyd & 

Mahoney v. Chevron U.S.A., 614 A.2d 1191, 1194 (Pa. Super. 1992), 

appeal denied, 631 A.2d 1003 (Pa. 1993), stands for the proposition that 

land itself is not unique, and that specific performance is only available if 

some characteristic of or structure on the land, or the location of the land 

itself, is of such importance to a buyer that no other property can duplicate 

its value. In Boyd, we reiterated the elements necessary for specific 

performance and observed that a remedy at law was inadequate given the 

unique characteristics of the property at issue. Specifically, we noted that 

the location of the property was objectively unique, because it was “situated 
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at the entrance to [the plaintiff’s] commercial development properties. 

Ownership of the property would permit Boyd & Mahoney to control the 

architectural design and future development of the area.” Id. At 1194-95. 

While this Court in Boyd comfortably relied upon aspects of the property 

that made the parcel unique to the buyer to demonstrate no adequate 

remedy at law was available in that case, this Court nowhere advanced the 

proposition urged by Appellees and the trial court that considerations of 

uniqueness are exclusive to a buyer. Our decision in Boyd in no manner 

rejected or changed the well-established law that specific performance is 

available to enforce sales of realty due to land’s inherent nature as unique 

and therefore, impossible of duplication. More directly, the question as to 

whether a property must present unique considerations to a buyer, as 

opposed to the land, to permit a decree of specific performance was not an 

issue before the Court in Boyd. We further note our research has yielded no 

case that supports the proposition that realty must be unique only to a 

buyer before specific performance may be ordered. To the contrary, our law 

makes clear that the remedy of specific performance in realty contracts 

derives from the proposition that all land is unique.

Finally, we reject the Appellees’ and the trial court’s reliance on 

Wagner v. Estate of Rummel, 571 A.2d 1055 (Pa. Super. 1990), appeal 

denied, 588 A.2d 510 (Pa. 1991), for the proposition that an adequate 

remedy at law exists for breach of a realty agreement. In Wagner, Ansley 

C. Rummel entered into an agreement with the plaintiffs whereby he granted 
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the plaintiffs an option to purchase 16 acres of land for $550.00 upon 

Rummel’s death. Eventually, Rummel passed away and his estate and 

daughters refused to honor the agreement. The plaintiff brought an action 

against the estate of Rummel and his daughters for breach of contract, 

seeking specific performance. Following trial, the court issued a decree nisi, 

directing the estate of Rummel to “prepare, execute, and deliver to the 

[p]lainitffs a deed for the property, upon payment to them of $550.00 by the 

[p]laintiffs.” Wagner, 571 A.2d at 1058. The defendants filed exceptions, 

which the trial court denied. On appeal, we vacated the trial court’s order 

for specific performance based on injustice and hardship. Specifically, we 

observed:

The only evidence regarding the value of the property was 

testimony that it was worth $55,000.00 to $60,000.00, roughly 

100 times what the [p]laintiffs sought to pay for it. Even 

without such evidence, a price of $550.00 for 16 acres of land, 

with a home on it, raises immediate questions of fairness, and 

whether such a price was unreasonably favorable to the 

[p]laintiffs. The agreement had been prepared by the 

[p]laintiffs, who admitted that they handled some business 

affairs for Mr. Rummel. There was significant testimony in the 

record to indicate he was unsophisticated at best, if not illiterate, 

regarding business matters and legal documents. He had to 

have others make out checks for him and handle other similar 

tasks. He had little or no schooling. Although the [p]laintiffs 

maintained, in their pleadings, that the [d]ecedent’s daughters, 

Frances Crays and Agnes Wells, had no contact with him for 30 

years, the evidence at trial was uncontradicted that they saw 

him and attended to his needs with great frequency. They 

visited him weekly, cleaned his home for him, and handled his 

personal and business needs. Further, although the [p]laintiffs 

alleged in their pleadings that Mr. Rummel frequently sold 

property at less than full value, no evidence of such prior 

conduct was educed. It appears that the trial court ignored all of 

these factors, which should have been considered in weighing 

the fairness and justice of the [p]laintiffs’ request for specific 

performance.
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Id. at 1059. Our decision in Wagner was based upon facts that indicated 

plaintiffs sought to purchase property valued between $55,000.00 to 

$60,000.00 for only $550.00—an amount anchored in injustice, 

circumstances under which equity could not afford relief. See Payne, 

supra. No similar considerations are present here.

We acknowledge that when the majority in Wagner6vacated the trial 

court’s order granting specific performance, it commented in passing:

In remanding the case, we would be remiss if we did not discuss 

one other factor which should also be addressed by the trial 

court. We have already pointed out that specific performance of 

a contract should be denied if there is an adequate remedy at 

law available. From our review of the record, it appears that the 

[p]laintiffs may have a right to seek a money judgment. In 

such proceedings at law, questions of unconscionability could 

also be raised as a defense. Moreover, evidence from competent 

appraisers and other experts concerning the value of the 

property could be considered, if appropriate, and the true value 

of the property could be determined. 

Id. at 1060 (emphasis added). We reject, as maintained by Appellees and 

the trial court, that Wagner stands for the clear proposition that there is no 

presumption of an inadequate remedy at law for specific performance of a 

contract for a sale of land in Pennsylvania. The gratuitous comments of the 

panel majority in Wagner were clearly dicta and did not form the basis for 

the Court’s decision in that case. The majority in Wagner does not make 

clear, and in fact leaves the reader guessing, as to what specifically in the 

record caused the Court to comment as it did, as well as to the legal theory 

____________________________________________

6 Wagner was a 2-1 panel decision of this Court.
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upon which the Court felt plaintiffs may have a claim for money damages. 

Although dicta may at times provide useful non-binding guidance, the dicta

quoted above is of little assistance without knowing the legal theory or 

record references alluded to in this passage from Wagner. Perhaps most 

important, the Court did not hold that plaintiffs had a claim for money 

damages. The Court merely speculated that plaintiffs may have such a 

claim. Wagner did not change the law of specific performance as it relates 

to realty contracts. Instead, Wagner reaffirmed that a decree of specific 

performance involves the exercise of equity and discretion by a court, and 

that a court should not order specific performance where it appears that 

hardship or injustice will result to either of the parties. Id. at 1058. 

In sum, we conclude that the trial court erred in denying Appellant’s 

post-trial motion for removal of nonsuit when the Appellant clearly 

established that his remedy at law was inadequate under the circumstances 

of this case.

Judgment reversed. Case remanded for proceedings consistent with 

this opinion. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/2016