J-S08032-19

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

OGONTZ PLAZA PARTNERS, LP, 

Appellant

v.

HAINES EASTBURN STENTON 

CORPORATION

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1182 EDA 2018

Appeal from the Order Entered March 20, 2018, 

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

No(s): January Term, 2017 No. 01266

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 17, 2019

Plaintiff/Appellant, Ogontz Plaza Partners, LP, appeals from the order of 

the Court of Common Pleas of Philadelphia County—Commerce Program, 

sustaining Defendant/Appellee’s preliminary objections and dismissing 

Appellant’s complaint with prejudice. We affirm.

The trial court sets forth the pertinent facts and procedural history as 

follows:

This dispute follows sale and assignment of commercial property 

in the West Oak Lane neighborhood of Philadelphia. The property 

in litigation is Suite D at 7175 Ogontz Avenue. A portion of the 

building has been sold by [Defendant/Appellee] Haines Eastburn 

Stenton Corporation (“HESC”) to non-party buyer City View 

Commercial, LLC (“CityView”), which then, before closing, 

assigned all its ownership interests in the transaction to 

[Assignee/Plaintiff/Appellant] Ogontz Plaza Partners, LP 

(“Ogontz”).
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Ogontz claims HESC breached its agreement of sale with CityView 

and argues this breach prejudices Ogontz as CityView’s assignee.

Ogontz claims in particular that Suite D at 7175 Ogontz Avenue 

was included in a commercial Rent Roll incorporated in the original 

agreement of sale but not included in the final deed.

Ogontz also claims HESC breached the agreement of sale by 

failing to keep a common area inside 7175 Ogontz in good order 

and repair.

***

STATEMENT OF FACTS

[Seller/Defendant/Appellee] HESC and [nonparty] buyer CityView 

signed an Agreement for the Purchase and Sale of Real Estate 

(“Agreement”) on an unknown date.[] Though 

[Assignee/Plaintiff/Appellant] Ogontz was not a party to the 

Agreement, Ogontz avers it acquired Suite D at 7175 Ogontz 

Avenue and other properties at a closing on January 12, 2016.3 A 

deed transferring the property from HESC to Ogontz is predated 

December 28, 2015, but the deed does not mention Suite D.

3 See Amended Complaint. No averment is made on the date of 

the Agreement and the copy of the Agreement attached as Exhibit 

B to the Amended Complaint also fails to include a date, other 

than one associated with the signature of an agent of HESC on 

October 9, 2015.

The Agreement lists the following properties: (1) 7101-63 Ogontz 

Avenue and (2) “Units C-3 and C-4 of that condominium located 

at 7169-7171, 7175 Ogontz Avenue.”[] The commercial Rent Roll 

attached to the Amended Complaint at Exhibit “14(j)” [sic] 

mentions Suite D 7175 Ogontz as [a] unit with a tenant whose 

lease expired on April 1, 2017.

PROCEDURAL

[Assignee/Plaintiff/Appellant] Ogontz commenced suit on January 

10, 2017 by praecipe to issue writ of summons. Ogontz then filed 
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a complaint on June 1, 2017 and an amended complaint on July 

17, 2017. [Defendant/Appellee] HESC filed preliminary objections 

on August 22, 2017. Despite [the court granting] four stipulations 

giving Ogontz extensions of time to answer 

[Defendant/Appellee’s] preliminary objections, [Plaintiff/Appellant 

Ogontz] never responded.

***

At preliminary objection, [the trial court] sustained and dismissed 

with prejudice because Ogontz’s amended complaint was fatally 

vague. Deciphering Ogontz’s two breach of contract counts was 

not helped by its repeated failure to respond to HESC’s preliminary 

objections.[]

Trial Court Opinion, filed 9/6/18, at 1-3.

Plaintiff/Appellant Ogontz filed a Motion to Reconsider asserting that the 

court’s order was premature in light of ongoing discussions between Ogontz’s 

replacement counsel and HESC’s counsel aimed at “identify[ing] more 

specifically the nature of the dispute and the discrepancy in the 

documentation, and to rework the conveyance documents.” Ogontz’s Motion 

to Reconsider, 3/29/18, at 2. According to the motion, efforts to resolve 

disagreements pertaining to the scope of the conveyance had been ongoing 

but were delayed because of difficulties in conducting necessary research into 

the condominium’s formation history, caused in part by a past fire that 

allegedly destroyed architectural drawings of the property in question. 

Motion, at 2-3.

“In retrospect,” Ogontz offered, “rather than filing stipulations and not 

addressing the pending preliminary objections, counsel for the Plaintiff 

acknowledges that procedurally a Praecipe to Settle, Discontinue and End 
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without prejudice should have been filed, thereby removing the matter from 

the Court’s docket while the attempts to amicably resolve the matter remained 

ongoing.” Motion, at 3. Ogontz, therefore, requested that the court vacate 

the Order dismissing the matter with prejudice in favor of permitting Ogontz 

to file a Praecipe to Settle, Discontinue, and End, without prejudice. On April 

18, 2018, the trial court denied Ogontz’s Motion to Reconsider. This timely 

appeal followed.

Plaintiff/Appellant Ogontz presents the following questions for review:

1. [Did] the trial court [err] as a matter of law in sustaining 

the preliminary objections raised by Defendant [HESC] 

under Pa.R.C.P. 1028(a)(4) (Demurrer) by failing to 

consider all well-pleaded material facts, misperceiving wellpleaded material facts, failing to consider and accept as 

true all inferences fairly deductible therefrom, and 

erroneously concluding that there were no facts that would 

entitle Plaintiff to relief[?]

2. [Did the trial court], in sustaining the preliminary objections 

of Defendant under other paragraphs of Pa.R.C.P. 1028, 

[err] by concluding that Plaintiff “will not state a viable 

claim,” and [err] by issuing an order which failed to grant 

leave to file a Second Amended Complaint[?]

3. [Did] the trial court [err] in dismissing the Amended 

Complaint with prejudice[?]

Appellant’s brief, at 2.

Appellant Ogontz's issues coalesce to challenge the trial court's order 

sustaining Appellee HESC’s preliminary objections. Our standard of review of 

this matter is well-settled:
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In reviewing a trial court's grant of preliminary objections, the 

standard of review is de novo and the scope of review is plenary. 

The salient facts are derived solely from the complaint and 

pursuant to that standard of review, the court accepts all wellpleaded material facts in the complaint, and all inferences 

reasonably deduced therefrom must be accepted as true.

In determining whether the trial court properly sustained 

preliminary objections, the appellate court must examine the 

averments in the complaint, together with the documents and 

exhibits attached thereto, in order to evaluate the sufficiency of 

the facts averred. The impetus of our inquiry is to determine the 

legal sufficiency of the complaint and whether the pleading would 

permit recovery if ultimately proven. This Court will reverse the 

trial court's decision regarding preliminary objections only where 

there has been an error of law or abuse of discretion. When 

sustaining the trial court's ruling will result in the denial of claim 

or a dismissal of suit, preliminary objections will be sustained only 

where the case is free and clear of doubt.

Jones v. Board of Directors of Valor Credit Union, 169 A.3d 632, 635 

(Pa.Super. 2017) (citations omitted). With respect to preliminary objections 

for insufficient specificity in a pleading, this Court has stated that:

[t]he pertinent question under [Pennsylvania] Rule [of Civil 

Procedure] 1028(a)(3) is whether the complaint is sufficiently 

clear to enable the defendant to prepare his defense, or whether 

the plaintiff's complaint informs the defendant with accuracy and 

completeness of the specific basis on which recovery is sought so 

that he may know without question upon what grounds to make 

his defense.

Rambo v. Greene, 906 A.2d 1232, 1236 (Pa.Super. 2006) (internal 

quotations omitted).

“Pennsylvania is a fact-pleading state; a complaint must not only give 

the defendant notice of what the plaintiff's claim is and the grounds upon 

which it rests, but the complaint must also formulate the issues by 

summarizing those facts essential to support the claim.” Lerner v. Lerner, 
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954 A.2d 1229, 1235 (Pa.Super. 2008). The pleadings standards set forth in 

Pa.R.C.P. 1019 specifically

require the pleader to disclose the material facts sufficient to 

enable the adverse party to prepare his case. A complaint 

therefore must do more than give the defendant fair notice of what 

the plaintiff's claim is and the grounds upon which it rests. It 

should formulate the issues by fully summarizing the material 

facts. Material facts are ultimate facts, i.e. those facts essential 

to support the claim. Evidence from which such facts may be 

inferred not only need not but should not be alleged.... Allegations 

will withstand challenge under [Rule] 1019(a) if (1) they contain 

averments of all of the facts the plaintiff will eventually have to 

prove in order to recover, and (2) they are sufficiently specific so 

as to enable defendant to prepare his defense.

Id. at 1235–36 (quoting Baker v. Rangos, 324 A.2d 498, 505–06 (Pa.Super.

1974)).

A review of Ogontz’s Amended Complaint shows, first, that it satisfied 

its obligation to assert ultimate facts that it possessed standing to pursue the 

present claim. As such, we disagree with the learned trial court to the extent 

it concludes “Ogontz made no averments at all that Buyer complied with [the 

Purchase Agreement’s assignment provisions],” to the demise of Ogontz’s 

claim of standing as an assignee to CityView. See Pa.R.A.P. 1925(a) Opinion, 

at 3 n.6. 

In fact, the Amended Complaint avers, “Ogontz Plaza made this 

purchase as the assignee of CityView pursuant to an Agreement for the 

Purchase and Sale of Real Estate (the “Agreement”) entered into between 

CityView and HESC Corp. . . . Said assignment being oral and pursuant to 

§17(i) of the Agreement.” Amended Complaint, ¶ 3. Section 17(i) of the 
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Agreement of Sale specifies that “Buyer shall be entitled to, without Seller’s 

prior consent, assign this Agreement to an entity formed by Buyer or its 

principals prior to Closing. . . .” 

Therefore, we find Ogontz sufficiently averred ultimate facts that it 

became City View’s assignee prior to closing so as to, at the very least, create 

a doubt regarding its standing to assert rights under the Agreement. 

Sustaining of preliminary objections on this basis, therefore, was error.

An alternative basis upon which the trial court sustained preliminary 

objections, however, centered on Ogontz’s claim that HESC breached its 

contractual duty to deliver the “Property” as described in Section 14(j) of the 

Agreement, entitled “Seller’s Representations and Warranties.” In Section 

14(j), HESC represents that Exhibit 14(j) of the Agreement sets forth a “Rent 

Roll” listing condominium units within the Property and the corresponding 

rents charged to their respective tenants. Among the units listed is the unit 

at issue in the present appeal, 7175 Ogontz Ave, Suite D, consisting of 1200 

square feet.

In its Amended Petition, Ogontz claims Section 14(j) and Exhibit 14(j)

of the Agreement of Sale conferred upon it a contractual right to receive Suite 

D as part of the condominium “Property” it purchased. Ogontz, however, 

acknowledges that a discrepancy exists between the Exhibit 14(j) Rent Roll 

and the more specific, legal description of the actual property to be conveyed 

as it appeared on Page 1, Section A of the Agreement of Sale in the Agreement 
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of Sale, and again in the Deed. Specifically, the latter descriptions do not 

reference 7175 Ogontz Avenue, Suite D.1

Examining the Amended Complaint and its attached documents with 

respect to the scope of the Property conveyed, we find it undeniable that the 

primary and specific description of the property appearing in the Agreement 

of Sale did not include Suite D, thus placing Ogontz on notice as to the entirety

of the subject Property. Moreover, this clear description aligned precisely with 

the description of the conveyance appearing in the Deed, itself. If parties who 

can read do not “read a deed put before [them] for execution, [they are] guilty 

of supine negligence, which is not the subject of protection either in equity or 

at law.” In re LaRocca's Trust Estate, 192 A.2d 409, 414.

To the extent Ogontz now argues that the Agreement’s Section 14

created sufficient doubt regarding whether the parties intended to include 

Suite D in the Deed so as to survive the preliminary objection stage, we must 

disagree. This is so because the Amended Complaint fails to articulate 

ultimate facts that would bring this case outside the scope of the general rule 

calling for merger of a contract in a subsequently executed deed:

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1 The first paragraph of the Agreement of Sale provides:

A. Buyer and Seller have entered into a Letter of Intent with 

respect to the Ogontz Plaza, consisting of certain real property 

located at Ogontz Plaza located at 7101-63 Ogontz Avenue, as 

well as Units C-3 and C-4 of that condominium located at 7169-

7171, 7175 Ogontz Avenue in Philadelphia, Pennsylvania, as 

more particularly described on the attached hereto as Exhibit 

A (the “Property”).
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“The general rule, in the absence of fraud or mistake, and of an 

intent to the contrary, is that an antecedent contract for the 

purchase of land is merged in the deed...upon the delivery and 

acceptance of the deed, there exists a ‘prima facie presumption’ 

of merger.” Dobkin v. Landsberg, 273 Pa. 174, 182, 116 A. 

814, 817 (1922) (internal citation and quotation marks omitted). 

The law presumes that delivery and acceptance of a deed 

consummates the prior agreement and precludes the parties 

“from looking behind the conveyance to subjects of strife 

suggested by their previous...contracts”; this preclusion applies to 

all parties in interest, even third parties. Id. at 185, 116 A. at 

818. “When a deed has been executed in pursuance of a prior 

agreement, it is prima facie evidence the latter has so merged 

that no action could be maintained on any of its covenants....” Id.

at 186, 116 A. at 818.

“Merger is said to be the rule, except when the intention of the 

parties is otherwise. . . . 

...

The intention of the parties is evidenced by the attending 

circumstances of each transaction. Dobkin, supra. “Intention of 

the parties...may be shown by their declarations, acts, or conduct 

at the time of execution of the agreement in question or from the 

terms of the writing itself.” Dick v. McWilliams, 291 Pa. 165, 

169, 139 A. 745, 746 (1927). 

“While the general rule undoubtedly is that, if the agreement is 

one for sale of lands, it will be presumed, in absence of an intent 

to the contrary, the contract of purchase is merged in the deed. . 

. .”

...

But the prima facie presumption of the law arising from the 

[delivery and] acceptance of a deed is that it is the execution of 

the whole contract. ... [Y]et the general rule is that a purchase is 

consummated by the conveyance; after which the parties have no 

recourse to each other except for imposition or fraud, or upon the 

covenants in the deed.” Dobkin, supra at 184, 116 A. at 817. 

Thus, “to rebut the legal presumption [of merger], the intention 

to the contrary must be clear and manifest.” Id. at 185, 116 A. at 

818.
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In re Mihordin, 162 A.3d 1166, 1171–72 (Pa.Super. 2017).

Here, the Amended Complaint failed to aver facts making clear and 

manifest the parties’ shared intent to convey Suite D to Ogontz despite the 

absence of any reference to Suite D in either the specific description of the 

subject property in the Agreement of Sale or in the subsequently executed 

Deed. For this reason, we agree with the trial court’s apparent application of 

the general rule that the property description in the Deed controls.2 

Accordingly, we find no error with the trial court’s order sustaining HESC’s 

preliminary objections to Ogontz’s breach of contract claim raised in Count I 

of the Amended Complaint.

Likewise, we find the trial court properly determined that Count II of the 

Amended Complaint provided Ogontz with no opportunity for relief. 

Specifically, Count II averred that HESC breached its contractual duty to 

provide Ogontz with access to utilities, alarm, and sprinkler system located in 

a portion of the Property’s basement not owned by Ogontz Plaza, but part of 

the common area of the Ogontz Condominium.” The Amended Complaint, 

however, refers to no provision in the Agreement to support a legal cause of 

action in contract in this respect. Accordingly, we find no error with the order 

sustaining preliminary objections on Count II.

For the foregoing reasons, we affirm the order entered below.

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2

In this regard, we note with approval the trial court’s observation that an 

action sounding in property law would represent the appropriate means by 

which to seek a remedy. 
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Order affirmed.

P.J.E. Bender joins the Memorandum.

Judge Kunselman concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/17/19