NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 13-4687

__________

RAYMOND BESSINGER; SHERRY BESSINGER; DANIEL CARR; BARBARA 

CARR; MARION FORR; DONALD FROST; MARY FROST; KENNETH GETTY; 

CAROL GETTY; DEBORAH JANFRANCISCO; ROBERT G. LUDWIG; L. RONALD 

OFFNER; MICHAEL PAGLAICCETTO; ALBERT PLATT; BONNIE PLATT; 

MICHAEL ROBERTS; EVELYN PAGLAICCETTO; BARBARA ROBERTS,

 Appellants

v.

INDIAN VALLEY GREENES, INC.; INDIAN VALLEY GREENES, L.P.; KENNETH 

GROSSE, JR., INDIVIDUALLY; KENNETH GROSSE DEVELOPMENT; KENNETH 

GROSSE DEVELOPMENT GROUP; GROSSE DEVELOPMENT CO.; GROSSE & 

QUADE, INC., D/B/A CENTURY ALLIANCE-LANSDALE; C RICHARD QUADE, 

JR., INDIVIDUALLY; QUADE CONSTRUCTION COMPANY, INC., 

D/B/A QUADE HOMES

__________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2-13-cv-01501)

District Judge: Honorable Gene E. K. Pratter

ARGUED July 9, 2015

BEFORE: FUENTES, NYGAARD, and ROTH, Circuit Judges

(Opinion Filed: October 14, 2015)

Edward J. Carreiro, Jr., Esq. [Argued]

262A Bethlehem Pike, Suite 102
2

Colmar, PA 18915

Counsel for Appellants

Herbert Bass, Esq. [Argued]

Brett A. Berman, Esq.

Melissa J. Dolin, Esq.

Fox Rothschild

2000 Market Street, 20th Floor

Philadelphia, PA 19103

Ronald L. Williams, Esq.

Fox Rothschild

747 Constitution Drive, Suite 100

Exton, PA 19341

Counsel for Appellees Indian Valley Greenes, Inc., Indian Valley Greenes, LP, 

Kenneth Grosse, Jr., Kenneth Grosse Development, Kenneth Grosse Development 

Group, and Grosse Development Co. 

Walter H. Swayze, III, Esq.

David A. Yavil, Esq. [Argued]

Segal McCambridge Singer & Mahoney

1818 Market Street, Suite 2600

Philadelphia, PA 19103

Counsel for Appellee Grosse & Quade, Inc.

Randy T. Burch, Esq.

Forry Ullman

540 Court Street

P. O. Box 542

Reading, PA 19603

Counsel for Appellees C Richard Quade, Jr., and Quade Construction Co.

__________

OPINION*

__________

NYGAARD, Circuit Judge.

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
3

The Appellants, all purchasers of houses located in the Indian Valley Greenes 

subdivision in Franconia Township, Pennsylvania, are convinced that the District Court 

erred by granting Appellees’ motion for dismissal pursuant to Fed. R. Civ. P. 12(b)(6).1 

The District Court ruled that the Sellers were exempt from the Interstate Land Sales Full 

Disclosure Act (15 U.S.C.A. §§ 1701-1720), eliminating its jurisdiction to review the 

merits of their state law claims of fraud, breach of contract, breach of implied and express 

warranties, negligence, and violation of the Pennsylvania Unfair Trade Practices and 

Consumer Protection Law. We will affirm the order of the District Court.2 

This opinion does not have any precedential value. Therefore, our discussion of 

the case is limited to covering only what is necessary to explain our decision to the 

parties. Before the District Court, the Sellers successfully argued that, pursuant to section 

1702(a)(2),

3

they are exempt from the Disclosure Act’s requirements because section 2 of 

the sales agreements at issue obligated them to construct the houses within two years of 

the date of the agreements.4

 

1 We will refer to Appellants collectively as “the Buyers.” We will refer to Appellees 

collectively as “the Sellers.”

2 Our scope of review is plenary. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 

(1990). 

3

“Unless the method of disposition is adopted for the purpose of evasion of this chapter, 

the provisions of this chapter shall not apply to-- . . . (2) the sale or lease of any improved 

land on which there is a residential, commercial, condominium, or industrial building, or 

the sale or lease of land under a contract obligating the seller or lessor to erect such a 

building thereon within a period of two years.” 15 U.S.C.A. § 1702(a).

4

“If completion of the Premises (hereafter defined) is delayed beyond the Extended 

Settlement Date for reasons due to governmenta1 regulations, inclement weather, theft, 
4

The Buyers argue that the Sellers are not exempt from the Disclosure Act. Under 

the Disclosure Act, contracts may not undermine the remedies of buyers such that a seller 

could breach at will. See Markowitz, 906 F.2d at 104.

5

 The Buyers say that conditional 

language in section 2 and section 17 of the sales agreements renders the specific 

performance remedy meaningless because all damage remedies are essentially waived.6 

 

strikes, lockouts or other labor disputes affecting either Seller or any of the Seller's 

suppliers or material or labor, delay in obtaining or issuance of permits or approvals or 

inspection(s) due to changes agreed to by Buyer and Seller after execution of this 

Agreement, or for any other reason beyond Se1ler's reasonable control, the Extended 

Settlement Date specified herein shall be automatically extended until such time as 

completion of the Premises is possible. Seller shall not be responsible for and is hereby 

relieved and discharged from all liability by reason of any delay in completion of the 

Premises or Settlement thereon, including, but not limited to, additional charges due to 

Buyer's lender, such as service fee, interest rate increases, rate lock extension fees or any 

other charges. Notwithstanding the foregoing, in compliance with the Interstate Land 

Sales Full Disclosure Act, Seller guarantees that the House will be substantially 

completed within twenty-four (24) months after execution of this Agreement by Buyer, 

and nothing in this Agreement shall be construed to limit Buyer's remedy of specific 

performance if Seller fails to have the House substantially completed within such twentyfour (24) month period.” District Court Docket 2:13-cv-01501-GP, Doc. 3-2, pg. 7. 

5 Our reasoning was based in part upon regulations issued by the Secretary of Housing 

and Urban Development that are no longer operative. 24 C.F.R. Ch. X, Part 1710, App. 

A, Part IV(b) (1989), reserved by 79 FR 34224-01. In spite of this, we cannot find any 

reason to alter our analysis or interpretation of the Disclosure Act. 

6 Section 17. “If Seller for any reason cannot construct or complete the Premises due to 

any present or future rules, regulations or restrictions by Federal, State, Municipal 

Governments, or any agency thereof or if the terms of this Agreement do not comply with 

such rules or regulations, or if Seller cannot complete the Premises by reasons by 

unanticipated surface or subsurface drainage and/or latent conditions at the site or as a 

result of any conditions beyond Seller's control or as a result in change in circumstances 

occurring after the date of this Agreement that would impose a severe hardship on Seller, 

Seller shall have the right to cancel this Agreement upon written notice to Buyer, 

delivered prior to Settlement, in which event Seller shall return to Buyer without interest, 

the full deposit of monies, including monies paid for options, and in such event Seller 
5

They focus on the disjunctive language in these provisions and place a heavy emphasis 

on the words “for any reason” in section 17. From their perspective, this phrase 

permitted the Sellers to essentially breach at will without incurring any damages. We 

disagree.

Our reading of the sales agreement aligns with the District Court’s interpretation. 

Buyers emphasize the words “for any reason” but ignore the word “due” that closely 

follows, and is critical to properly understanding the paragraph. The District Court 

correctly interpreted the conditions, particularly in section 17, as referring to 

circumstances that are beyond the Sellers’ control. This is consistent with the intent of 

the Disclosure Act. See id. (noting that providing only a deposit refund for 

circumstances within the control of the Seller is not within the scope of the exemption). 

The conditions do not limit the Buyers’ right to remedies in other situations where the 

Sellers would fail to close at settlement. The agreement does not give Sellers the 

unbridled discretion that the Buyers assert. We are not persuaded by what is, at best, a 

strained reading of the agreement. We conclude that the District Court did not err by 

concluding that the conditions set out in section 2 and section 17 of the sales agreement 

did not render an illusory promise of specific performance. Section 2 satisfies the 

requirement of the two-year exemption under the Disclosure Act.

Buyers next contend, citing to Gentry v. Harborage Cottages-Stuart, LLLP, 654 

F.3d 1247, 1257 (11th Cir. 2011), that the Sellers have the obligation to prove that the 

 

shall have no further liability whatsoever to Buyer.” District Court Docket, 2:13-cv01501-GP, Doc. 3-2, pg. 14. 
6

specific performance language in section 2 served a legitimate business purpose and was 

not written into the agreement for the purpose of evading the requirements of the Act. 

However, the District Court referenced an opinion from the Court of Appeals for the 

Eighth Circuit. Atteberry v. Maumelle Co., 60 F.3d 415, 421 (8th Cir. 1995). There, the 

court ruled that the plaintiff-homeowners have the burden of proving that, when

defendant-developer inserted language into the agreement exempting them from the 

Disclosure Act, defendant “acted with fraudulent intent, i.e., that at the time of 

contracting they did not intend . . . to fulfill its obligations under the building provision.”

Id. We conclude that the District Court did not err by placing the burden of sufficiently 

alleging fraud on the plaintiff-homeowners.

7

Finally, we conclude that the District Court did not err by ruling that the Buyers 

failed to adequately plead or argue such a claim. Before the District Court, Buyers relied 

only upon the alleged illusory nature of the specific performance obligation and their 

assertion that, as the agreement was written, they were without any actual relief beyond 

the return of deposit monies. Beyond this unconvincing assertion, Buyers provided the 

 

7 As we stated, only an unreasonably strained interpretation of the contract supports the 

Buyers’ contention that the Sellers could breach “at will.” Moreover, the Buyers readily 

admit that they have remedies for their state law claims in state court. We are confident 

that confining the meaning of the phrase “adopted for the purpose of evasion of this 

chapter” to focus upon bad-faith use of the enumerated exceptions is a proper and just 

application of the Act in this case. We also are convinced that the interests of justice are 

served in this case by requiring the Buyers to do more than merely raise a specter of bad 

faith conduct regarding the Disclosure Act where their complaint and their pleadings 

before the District Court lack any indicia of malfeasance regarding the Act. 
7

District Court with no basis on which a claim of evasion could be based. Accordingly, 

for all of these reasons, we will affirm the order of the District Court.