J-A23013-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

GEORGE WANYO 

Appellant

v.

THOMAS A. MULQUEEN AND JOHN 

KEMPS

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 521 MDA 2024

Appeal from the Judgment Entered May 17, 2024

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

No(s): S-2070-10

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

MEMORANDUM BY BOWES, J.: FILED: OCTOBER 8, 2024

George Wanyo (“Wanyo”) appeals from the judgment entered on 

May 17, 2024, after the trial court granted a motion for summary judgment 

filed by John Kemps (“Kemps”) and a jury determined that Wanyo had not 

proven damages with respect to his negligence claim against Thomas A. 

Mulqueen (“Mulqueen”). We affirm.

We glean the following background from the certified record. In 2005, 

Wanyo began working for a fireworks company owned by Kemps. At Kemps’s 

encouragement, Wanyo sought to purchase a house closer to the business. 

With the help of a realtor, Wanyo located an available property at 1485 

Schuylkill Mountain Road in Schuylkill Haven, Pennsylvania. Both Wanyo and 

Kemps personally visited the property and Wanyo ultimately entered into an 

agreement of sale with the seller to purchase the property.
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The trial court summarized the circumstances surrounding the 

transaction as follows:

[Before the deal closed,] a home inspection was completed 

by . . . Mulqueen, . . . in which there was no mention of any mold 

issues in the report. Although the report stated “the property has 

been neglected[”] and a visual inspection of the property indicated 

that the property was in “poor condition[,]” which Wanyo 

confirmed in his deposition . . . , Wanyo signed the sales 

agreement. Based upon his income, however, Wanyo was unable 

to obtain financing. In an attempt to help his key employee,

Kemps and Wanyo agreed that Kemps would purchase the 

property and then enter into a short-term lease with Wanyo to 

rent the property with the goal that Wanyo would be able to secure 

financing within six months. [The seller]’s disclosure statement 

for the sale was submitted but arguably deficient. However, the 

sale between Wanyo and [the seller] for $92,000 did not close 

because of Wanyo’s failure to obtain financing. Wanyo and Kemps 

agreed that the sales agreement would be assigned to Kemps for 

purchase from [the seller]. The sale closed on January 29, 2008 

for the $92,000 purchase price. Kemps accepted [the seller]’s 

disclosure statement without question [since Wanyo’s realtor] had 

arranged for the home inspection by Mulqueen.

On February 1, 2008[,] Kemps prepared a rental agreement 

for the property for six months which provided for a rental 

payment of $501.44 per month. Saliently, Wanyo was still unable 

to obtain financing [at the end of the term] and he agreed with 

Kemps to enter into an installment sales agreement for Wanyo to 

purchase the property upon completion of the installment sales 

agreement on August 10, 2008. Remarkably, Kemps completed 

his seller’s disclosure statement which has been submitted as 

summary judgment Exhibit “D”.

Immediately upon the entry of the rental agreement on 

February 1, 2008, Wanyo took possession of the property and 

lived [there] until September 17, 2010 – two and one[-]half years. 

[Wanyo] lived in the property with his then girlfriend while he 

asserted that he and she became ill while living in the home. 

During this period of time[,] Wanyo and his friends began to 

renovate and improve the property[, and] Wanyo lived in the 

home while improving the property. In September 2010, Wanyo 
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contacted the Schuylkill County Weatherization Program to have 

[it] insulate the property. The County Weatherization agent . . . 

opined to Wanyo that there was mold in the [basement] and that 

Wanyo should immediately vacate the home . . . . Wanyo, then

immediately vacated the property[,] leaving all of his personal 

effects behind after mold was confirmed through the report of 

Eagle [Industrial] Hygiene Associates, Inc. nearly two years and 

seven months after he began to live [in] and repair the home. 

Trial Court Opinion, 2/8/23, at 2-4 (cleaned up).

Wanyo filed a suit in 2011 naming Kemps and Mulqueen as defendants, 

along with the seller and real estate agent. With respect to Kemps, Wanyo 

raised one count of breach of contract and several negligence-related counts.1 

Against Mulqueen, Wanyo asserted one count of breach of contract. Mulqueen 

did not respond to the complaint, and accordingly Wanyo obtained a default 

finding of negligence against him. The case proceeded for over a decade, with 

the parties taking depositions and conducting other discovery. Kemps filed a 

motion for summary judgment in 2022, which the court granted following 

briefing, and issued an order and opinion on February 8, 2023.

Thereafter, Wanyo proceeded to a jury trial relating exclusively to 

damages caused by Mulqueen’s failure to report the mold in the property.2 

Wanyo generally provided testimony and evidence concerning improvements 

he made to the home while he lived there, intermittent illness he incurred 

while residing in the house, his discovery of the mold in late summer of 2010, 

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1 These included negligence, negligent misrepresentation, concealment of 

hazard, and premises liability.

2 Before trial, Wanyo agreed to discontinue the actions asserted against the 

seller and real estate agent.
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and his flight from the property. Mulqueen was not present throughout trial 

and offered no evidence. The jury nonetheless found that Wanyo had not 

proven damages. Wanyo filed a post-trial motion requesting a new trial, 

contending that the jury’s decision was against the weight of the evidence. 

The trial court denied the motion and issued an opinion supporting its decision

on March 13, 2024.

This timely appeal followed. Wanyo complied with the trial court’s order 

to file a concise statement of errors pursuant to Pa.R.A.P. 1925(b). The court 

thereafter entered an order directing us to its previously authored opinions. 

Wanyo presents two issues for our consideration:

I. Whether the trial court abused its discretion in denying 

[Wanyo]’s motion for post-trial relief and finding that the 

jury’s verdict was not against the weight of the evidence.

II. Whether the trial court committed an error of law and 

abused its discretion in granting Kemps’[s] motion for 

summary judgment.

Wanyo’s brief at 6 (cleaned up).

In his first issue, Wanyo asserts that the trial court abused its discretion 

in denying his post-trial motion, which averred that the jury’s zero-dollar 

damage award was against the weight of the evidence. This Court has stated

as follows:

Our scope of review on a weight of the evidence claim is very 

limited. We will respect the trial court’s findings with regard to 

credibility and weight of the evidence unless it can be shown that 

the lower court’s determination was manifestly erroneous, 

arbitrary and capricious or flagrantly contrary to the evidence.
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This Court’s review of a weight claim is a review of the trial court’s 

exercise of discretion, not of the underlying question of whether 

we believe that the verdict is against the weight of the evidence.

Rissi v. Cappella, 918 A.2d 131, 140 (Pa.Super. 2007) (cleaned up).

Wanyo’s sole count against Mulqueen was for negligence. As indicated 

above, a finding of negligence was entered in favor of Wanyo after Mulqueen 

failed to respond to the complaint. We have held that “[e]stablishing only a 

breach of duty, i.e., negligent conduct, does not automatically entitle a 

plaintiff to damages. A plaintiff also must prove causation before being 

allowed to proceed to the question of damages.” Rogers v. Thomas, 291 

A.3d 865, 874 (Pa.Super. 2023). A jury may award damages for negligent 

conduct if it is the factual cause of a plaintiff’s injuries, which our standard 

jury instructions define accordingly:

Conduct is a factual cause of harm when the harm would not have 

occurred absent the conduct. To be a factual cause, the conduct 

must have been an actual, real factor in causing the harm, even 

if the result is unusual or unexpected. A factual cause cannot be 

an imaginary or fanciful factor having no connection or only an 

insignificant connection with the harm.

Pa.SSJI (Civ) § 13.20.

In his brief, Wanyo argues that the court erred in denying his request 

for a new trial because he proved both specific damages and causation. See

Wanyo’s brief at 15-18. He preliminarily recounts that “Mulqueen did not 

participate in the trial and all of [Wanyo]’s evidence was uncontested and 

uncontradicted.” Id. at 16. Wanyo then highlights the specific damage 

evidence that he introduced at trial, including the following: (1) photographs 
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of renovations he made to the house while living there; (2) an itemization of 

expenses for materials for improvements made, as well as estimated labor 

costs; (3) a list of payments made to Kemps while Wanyo was living on the 

property; and (4) documents showing payments made by Wanyo for insurance 

and real estate taxes. Id. 

Wanyo also contends that he proved causation of harm through the 

testimony of Richard Schuetrum, an employee of the Schuylkill County 

Weatherization Program, who in 2010 found what he believed was mold on 

the wall. Id. at 17. Mr. Schuetrum also stated that he was shown a 

photograph by Wanyo alleged to have been taken in 2008, which displayed

“black staining” on the wall. Id. at 17. Wayno further maintains that 

causation was supported by a September 2010 report from Eagle Industrial 

Hygiene Associates, Inc., which showed that a sample from the basement 

proved to contain mold, as well as deposition testimony from his treating 

physician that the mold “could cause” the symptoms Wanyo experienced. Id. 

at 17-18.

In denying Wanyo’s post-trial motion, the trial court acknowledged that 

there was an entry of default judgment against Mulqueen but noted that the 

evidence as to damages was questionable, providing fifteen different reasons. 

See Trial Court Opinion, 3/13/24, at 3-8. Inter alia, it recounted that Wanyo 

was a self-proclaimed handyman who had taken extensive courses over a 

three-year period in carpentry, mill work, and residential construction, and

who acknowledged that the house was not livable at the time of purchase but 
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that it could be made livable through work. Id. at 3-4. The court then 

considered that Wanyo never divulged the name of his girlfriend who also 

purportedly got sick during the relevant period, and she never testified. Id. 

at 4. Additionally, the medical deposition testimony indicated that Wanyo was 

not treated until 2012 or 2013, years after Wanyo left, and that at best, the 

mold “could” have caused the symptoms he described. Id. at 5-6. 

Beyond this, the court stated that Wanyo fell asleep two times during 

trial, in the view of the jurors. Id. at 6. It opined that Wanyo’s testimony 

was not wholly consistent, as he attested that Mulqueen’s inspection report 

was only a single page, whereas the jury requested to see it during 

deliberations, and it came to light that the report was fifteen pages in length. 

Id. at 6. Finally, the court considered that Wanyo did not offer any evidence 

as to the cost of repairs arising from the time after he claimed to have 

abandoned the home or whether it was sold, including any alleged price 

difference because of the mold. Id. at 7.

Based on our review, we conclude that the trial court did not abuse its 

discretion in denying Wanyo’s post-trial motion for a new trial. The record 

verifies the court’s findings that Wanyo’s testimony was questionable and that 

his evidence did not overwhelmingly support his request for damages. While 

Wanyo provided detailed statements concerning the updates he made to the 

property and estimated his own labor costs, it appears that the jury did not 

believe that these expenses were factually caused by Mulqueen’s failure to 

disclose mold. In the same vein, the jurors were free to reject Wanyo’s claim
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that he would not have purchased the property if he had known about the 

mold, especially considering the fact that Wanyo knew the property was 

uninhabitable at the time of purchase and that it needed substantial repairs. 

Further, the court correctly noted that there was a dearth of evidence provided 

as to what Wanyo did with the property after he abandoned it, including any

detriment to the value of the house. In light of its extensive review of the 

evidence that informed the jury’s decision, the trial court did not come to a

determination that was “manifestly erroneous, arbitrary and capricious or 

flagrantly contrary to the evidence.” Rissi, 918 A.2d at 140. No relief is due.

Wanyo next asserts that the trial court erred in granting summary 

judgment in favor of Kemps. We begin with our well-settled standard of 

review for appeals from orders granting summary judgment:

We view 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. Only 

where there is no [genuine issue as to any] material fact and it is 

clear that the moving party is entitled to judgment as a matter of 

law will summary judgment be entered. Our scope of review of a 

trial court’s order granting or denying summary judgment is 

plenary, and our standard of review is clear: the trial court’s order 

will be reversed only where it is established that the court 

committed an error of law or abused its discretion.

Shellenberger v. Kreider Farms, 288 A.3d 898, 905 (Pa.Super. 2023)

(cleaned up). 

The “failure of a nonmoving party to adduce sufficient evidence on an 

issue essential to his case and on which he bears the burden of proof 

establishes the entitlement of the moving party to judgment as a matter of 
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law.” Id. (cleaned up). However, “[i]f there is evidence that would allow a 

fact-finder to render a verdict in favor of the non-moving party, then summary 

judgment should be denied.” Id. at 905-06 (cleaned up). Accordingly, it is 

this Court’s responsibility “to determine whether the record either establishes 

that the material facts are undisputed or contains insufficient evidence of facts 

to make out a prima facie cause of action, such that there is no issue to be 

decided by the fact-finder.” Id. at 905.

In the complaint, Wanyo asserted against Kemps one count of breach 

of contract and four counts of various types of negligence. “Three elements 

are necessary to plead properly a cause of action for breach of contract: (1) 

the existence of a contract, including its essential terms, (2) a breach of a 

duty imposed by the contract and (3) resultant damages.” Discover Bank 

v. Booker, 259 A.3d 493, 495 (Pa.Super. 2021) (cleaned up). With respect 

to negligence claims:

Four elements are necessary to establish a cause of action in 

negligence: a duty or obligation recognized by law; breach of that 

duty by the defendant; a causal connection between the 

defendant’s breach of that duty and the resulting injury; and 

actual loss or damage suffered by the complainant. Establishing 

only a breach of duty, i.e., negligent conduct, does not 

automatically entitle a plaintiff to damages. 

Rogers, 291 A.3d at 874.

Further, some of the parties’ arguments invoke the Real Estate Seller 

Disclosure Law (“RESDL”). This Court has observed:

[The] RESDL, which became effective in 2001, requires a seller of 

real property, except in certain instances not present in the 
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case sub judice, to disclose to a buyer, prior to the signing of an 

agreement of sale or transfer, “any material defects with the 

property known to the seller.” The term “material defect” is 

defined as

A problem with a residential real property or any 

portion of it that would have a significant adverse 

impact on the value of the property or that involves 

an unreasonable risk to people on the property. The 

fact that a structural element, system, or subsystem 

is near, at, or beyond the end of the normal useful life 

of such a structural element, system, or subsystem is 

not by itself a material defect.

Hossler v. Tweedlie, 306 A.3d 361, 376 (Pa.Super. 2023) (cleaned up).

As to his claim that the trial court erred in granting summary judgment 

in favor of Kemps, Wanyo sets forth the following argument in his brief in 

total:

In arguing against the motion for summary judgment, [Wanyo] 

relied on Phelps v. Caperoon, 190 A.3d 1230, 1238 (Pa.Super. 

2017), in that a seller must still disclose material defects with the 

property despite the sales agreement for said property containing 

an “as is” clause. The trial court found that Phelps is inapplicable 

because Kemps completed a seller disclosure statement, where 

the seller in Phelps failed to complete a seller disclosure 

statement due to the “as is” clause. However, the trial court erred 

by failing to determine whether Kemps knew there was mold in 

the property and disclosed said mold. Kemps only stated in the 

disclosure statement that the basement had dampness but he 

failed to disclose the mold. Kemps was present at Mulqueen’s 

home inspection, in which [Wanyo] took a photograph showing 

black staining on the walls. The court erred by finding Phelps

inapplicable solely because Kemps filled out a seller disclosure 

statement but failed to recognize whether Kemps knew of mold 

and failed to disclose.

A genuine issue of material fact exists as to whether Kemps knew 

there was mold in the property and failed to disclose it.
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Wanyo’s brief at 19-20 (cleaned up). Notably, Wanyo does not discuss the 

elements of the claims he brought against Kemp, nor does he cite any portion 

of the record demonstrating that Kemps had knowledge of the mold other than 

Kemps’s mere presence at the same inspection Wanyo attended.3

In its opinion, the trial court held that Phelps is not dispositive because 

here, Kemps provided a seller disclosure statement containing “as is”

disclaimer language, unlike the seller in Phelps. See Trial Court Opinion, 

2/8/23, at 10. It further noted that Kemps had only been in possession of the 

property for three days before Wanyo moved in under the six-month lease 

agreement. Id. Based on this, the court opined that Kemps relied on 

Mulqueen’s inspection report, just as Wanyo did. Id. at 11.

For his part, Kemps argues that Wanyo failed to produce evidence that 

Kemps knew of any mold on the property or that that any such abnormal or 

dangerous mold existed in 2008, at the time of the transfer. See Kemps’s 

brief at 11. He maintains that the presence of mold alone would not constitute 

a “material defect” pursuant to the RESDL unless it was unusual or hazardous

in nature. Id. (citing 68 Pa.C.S. § 7303). Kemps further avers that the only 

evidence supporting the existence of mold was a report from 2010, over two 

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3

In setting forth the factual background of the case, Wanyo cites to his 

testimony in the damages trial against Mulqueen, which was made nearly a 

year after the trial court granted summary judgment in favor of Kemps. He 

does not direct us to any of the deposition transcripts or other discovery 

responses in this case that would have been before the court at the time it 

ruled on Kemps’s summary judgment motion.
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and one-half years after Kemps initially purchased the property, which does 

not bear on the mold’s presence in 2008. Id. at 13. 

Additionally, Kemps asserts that by entering into the installment 

contract, Wanyo became the equitable owner of the property, much like a 

mortgagor, and therefore would bear responsibility for any mold he was 

exposed to during that time. Id. at 16-18. Kemps furthermore contends that

the contract claim fails because there was no implied duty of good faith, as 

the parties expressly contracted the “as is” condition. Id. at 19-20. He argues 

that this is bolstered by Wanyo’s deposition testimony, wherein he 

acknowledged that the house was neglected and unlivable at the time it was 

purchased. Id. at 22.

Upon review, we cannot conclude that the trial court erred in granting 

Kemps’s motion for summary judgment. To begin, Wanyo’s scant and 

unsupported argument fails to demonstrate that there was sufficient evidence 

for a jury to find Kemps liable for breach of contract, negligence, or the other 

negligence-related counts raised within the complaint. By way of example, he 

makes no discussion of the implied covenant of fair dealing, upon which his 

breach of contract claim relies. See Complaint, 9/2/2011, at ¶ 32. Wanyo 

similarly does not discuss how his premises liability claim is affected by the 

rental and installment agreements at play and their disclaimer language. In 

short, he leaves it for this Court to connect the dots as to his arguments on 

appeal, while failing to cite law or the record. That we will not do. See

Interest of D.C., 263 A.3d 326, 336 (Pa.Super. 2021) (stating that this Court 
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“will not act as counsel and will not develop arguments on behalf of an 

appellant”); Pa.R.A.P. 2119 (requiring that the argument section of briefs be 

“followed by such discussion and citation of authorities as are deemed 

pertinent”).

Moreover, it is clear that Kemps was entitled to judgment as a matter 

of law. As Kemps highlights, the only evidence that there was mold in the 

home came from the report made in late summer of 2010. The report did not 

opine as to how long the mold had been there. Based on this evidence, a jury 

would be required to speculate that any was present in the house in February 

2008, when Wanyo first took possession of the property, or in August 2008, 

when Kemps transferred the property to Wanyo through the installment 

agreement. Furthermore, Wanyo’s only basis to claim that Kemps had 

knowledge of any mold was his mere presence at an inspection, which by 

Wanyo’s own assertions, was bereft of any discussion or acknowledgment of 

mold. Without evidence of that knowledge, Wanyo could not establish either 

breach of a contract or breach of any duty required to show negligence. 

Accordingly, we find that the record “contains insufficient evidence of facts to 

make out a prima facie cause of action, such that there is no issue to be 

decided by the fact-finder.” Kreider Farms, 288 A.3d at 905. 
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Based on the arguments presented, we do not have cause to disturb the 

judgment.

Judgment affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 10/08/2024