J-A24009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CAROLE ANNE HENSLEY AND JOHN R. 

GREISIGER

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

DONALD AND BERNICE A. DUVALL, AND 

KURFISS SOTHEBY’S INTERNATIONAL 

REALTY, AND GEORGE WELLS, AND 

JAMES FINGLETON, AND PRUDENTIAL 

FOX & ROACH AND MARIAN GALANTI

No. 2911 EDA 2015

Appeal from the Judgment Entered September 17, 2015

In the Court of Common Pleas of Bucks County

Civil Division at No(s): 10-10374

CAROLE ANNE HENSLEY AND JOHN R. 

GREISIGER

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

DONALD AND DENISE DUVALL, AND 

KURFISS SOTHEBY’S INTERNATIONAL 

REALTY, AND GEORGE WELLS, AND 

JAMES FINGLETON, AND PRUDENTIAL 

FOX & ROACH AND MARIAN GALANTI

APPEAL OF: FOX & ROACH LP D/B/A 

PRUDENTIAL FOX & ROACH AND MARIAN 

GALANTI

No. 2967 EDA 2015

Appeal from the Judgment Entered September 17, 2015

In the Court of Common Pleas of Bucks County

Civil Division at No(s): 10-10374
J-A24009-16

- 2 -

CAROLE ANNE AND JOHN R. GREISIGER 

HENSLEY

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

DONALD AND DENISE DUVALL, AND 

KURFISS SOTHEBY’S INTERNATIONAL 

REALTY, AND GEORGE WELLS, AND 

JAMES FINGLETON, AND PRUDENTIAL 

FOX & ROACH AND MARIAN GALANTI

No. 3098 EDA 2015

Appeal from the Judgment Entered September 17, 2015

In the Court of Common Pleas of Bucks County

Civil Division at No(s): 10-10374

CAROLE ANNE AND JOHN R. GREISIGER IN THE SUPERIOR COURT OF

HENSLEY PENNSYLVANIA

v.

DONALD AND BERNICE DUVALL, AND 

KURFISS SOTHEBY’S INTERNATIONAL 

REALTY, AND GEORGE WELLS, AND 

JAMES FINGLETON, AND PRUDENTIAL 

FOX & ROACH AND MARIAN GALANTI

APPEAL OF: DONALD AND DENISE 

DUVALL No. 3099 EDA 2015

Appeal from the Judgment Entered September 17, 2015

In the Court of Common Pleas of Bucks County

Civil Division at No(s): 10-10374

BEFORE: BOWES, OTT AND SOLANO, JJ.

MEMORANDUM BY BOWES, J.: FILED APRIL 13, 2017
J-A24009-16

- 3 -

These cross-appeals were filed in an action brought by Carole Anne 

Hensley and John R. Greisiger (collectively the “Buyers”) after they 

purchased real estate from Donald and Bernice A. Duvall (the “Sellers”). 

The Buyers instituted this action on October 7, 2010. The named 

defendants in the action included: 1) the Buyers’ real estate agent, Fox & 

Roach LP d/b/a Prudential Fox & Roach and Marian Galanti (collectively 

“Prudential”); 2) the Sellers; and 3) the Sellers’ real estate agent, Kurfiss 

Sotheby’s International Realty, George Wells, and James Fingleton 

(“Sotheby’s”). The Buyers averred that Prudential was negligent in 

representing them during the course of the real estate transaction. The 

Buyers also asserted claims of breach of contract, fraud in the inducement, 

and negligence against the Sellers, and raised a negligence count against 

Sotheby’s. The Sellers thereafter filed a cross-claim for indemnification 

against Sotheby’s. Sotheby’s was granted summary judgment prior to trial, 

the Sellers were granted nonsuit during trial, and a jury returned a verdict in 

favor of the Buyers and against Prudential. 

After careful review, we affirm the trial court’s grant of a nonsuit 

entered at trial in favor of the Sellers, and conclude that the nonsuit 

rendered moot the issue of whether the trial court properly granted 

summary judgment in favor of Sotheby’s. We also affirm the judgment 

entered on the jury verdict in favor of the Buyers and against Prudential, but 
J-A24009-16

- 4 -

we remand for an award of post-judgment interest and attorney fees to the 

Buyers. 

We first summarize the evidence presented at trial, viewed in the light 

most favorable to the Buyers, as the prevailing parties, against Prudential. 

For a number of years, the Buyers had operated a successful day care 

business for dogs; in 2007, they decided to expand that enterprise to include 

overnight kennel services. In September 2007, the Buyers and Prudential 

executed a Pennsylvania Exclusive Buyer Agency Contract ’05. Plaintiffs’ 

Exhibit 4a; Pennsylvania Exclusive Buyer Agency Contract ’05, 9/19/07. Ms. 

Galanti was the Prudential employee who agreed to be the Buyers’ real 

estate agent. In the contract, Prudential was appointed as “Buyer’s 

Exclusive Agent for the purpose of assisting Buyer in locating acceptable real 

property . . . for purchase or lease.” Id. at 1. Prudential represented that 

it would act on behalf of the Buyers, “as required by Pennsylvania law.” Id. 

at 2. Prudential agreed to use “its professional knowledge to make a good 

faith effort to locate Property as described by the Buyer,” and “to assist 

Buyer throughout the transaction,” and to “act at all times in the Buyers’ 

interest.” Id. 

The Buyers informed Ms. Galanti that they were seeking a property 

where they could operate an overnight dog kennel and dog day care 

operation. The Sellers had real estate on the market on Barndt Road in 

Bucks County (the “property”), that Ms. Galanti concluded would be suitable 
J-A24009-16

- 5 -

for the Buyers’ business. The property had been on the market for two 

years and was listed for $1.6 million. Although it was priced above what the 

Buyers had budgeted, they nevertheless visited it three times. They 

informed the Sellers’ real estate agents, Mr. Fingleton and Mr. Wells, who 

worked for Sotheby’s, of their objective to operate a day care and kennel for 

dogs. After inspecting the property, the Buyers specifically instructed Ms. 

Galanti that they intended to utilize an existing structure on the property, a 

barn, to house the dogs. The Buyers had no interest in the property unless 

the barn could serve as their kennel, and Prudential admitted that it was 

aware of the Buyers’ desire to use the barn for that purpose. Negotiations 

resulted in an agreement of sale for that property in the amount of 

$975,000. Agreement of Sale, 3/25/08.1 

After the agreement was drafted, the Buyers, the Sellers, and their 

respective real estate agents measured the property to ensure that it met 

the township's zoning requirements. Those mandates provided that a 

kennel could not be located within a 200-foot zone of the property line. 

According to the measurements, the barn was three feet short of the 200-

foot required setback. The Buyers were informed of the measurements and 

that the property did not conform to the township's 200-foot zoning 

requirements. They expressed concern that the barn was not 200 feet or 

____________________________________________

1

 The agreement was dated March 25, 2008, but executed by the Buyers on 

March 26, 2008, and by the Sellers on March 28, 2008.
J-A24009-16

- 6 -

more from the property line since their sole purpose in buying the property 

was to operate a kennel from the existing barn. Ms. Galanti told the Buyers 

not to be concerned because one of the Sellers, Mr. Duvall, was a township 

supervisor. Mr. Duvall thereafter represented to the Buyers that he could 

obtain a de minimis variance for the barn so that the Buyers could use the 

barn for their kennel. Mr. Duvall also informed the Buyers that, if he could 

not obtain the variance, they could satisfy the township’s 200-foot set-back 

requirement because there were steps that extended four feet inside the 

barn. Mr. Duvall represented to the Buyers that they would be allowed to 

house the dogs beyond the four-foot stairwell, which would satisfy the 200-

foot minimum. 

Before executing the agreement of sale, the Buyers requested that 

language be placed in the document to ensure that they could use the barn 

as their kennel. Ms. Hensley testified that she and Mr. Greisiger told Ms. 

Galanti to put “a contingency in [the agreement] to make sure that when we 

buy this property that we can operate the kennel from the barn.” N.T. Trial, 

6/9/15, at 20. Ms. Hensley further stated, “I’m not a real estate agent. I 

didn’t do the wording. I relied on [Ms. Galanti] to get the correct verbiage” 

so that the agreement of sale would be void if the barn could not be used as 

a kennel. Id. 

Ms. Galanti inserted language in the agreement of sale that purported 

to ensure that it would be void if the barn could not be used as a kennel. 
J-A24009-16

- 7 -

The language in question stated that the sale was “CONTINGENT ON 

TOWNSHIP AND /OR COUNTY'S APPROVAL FOR CHANGE OF USE ALLOWING 

BUYERS TO OPERATE A KENNEL/DOGGIE DAYCARE FROM THE PROPERTY. 

INCLUDING THE ADDING OF AN ADDITIONAL BUILDING SPACE AND /OR AN 

IN–LAW SUITE.” Agreement of Sale, 3/25/08, at 10 (emphasis added). 

The language was reviewed by her supervisors. The Buyers believed that 

this language would render the agreement unenforceable if they could not 

operate their kennel from the barn. Mr. Greisiger testified that he asked Ms. 

Galanti specifically what the contingency clause meant, and she responded 

that this contingency clause meant that the agreement would be “null and 

void if you don’t get your permit to use the barn as a kennel.” N.T. Trial, 

6/9/15, at 221. 

After the parties measured the distance from the barn to the property 

line, the Buyers, the Sellers, and their respective real estate agents went to 

the township building and met with Greg Lippincott, the township zoning 

officer. Mr. Duvall told Mr. Lippincott that the Buyers were interested in 

purchasing his property upon the condition that they could use the barn for a 

kennel and day care facility for dogs. Mr. Duvall showed Mr. Lippincott 

drawings and measurements of the barn. Mr. Lippincott acknowledged that 

putting the kennel in the barn “was primarily the number one issue.” 

N.T.Trial, 6/9/15, at 265. Mr. Lippincott represented to the Buyers that, if 

they kept the dogs beyond the four-foot steps, the barn could be used as a 
J-A24009-16

- 8 -

kennel and that the barn would meet the 200 foot mandate. Mr. Lippincott 

also assisted the Buyers in completing a change of use zoning permit 

indicating that the present use of the real estate was as a barn and stable 

and that the proposed usage was for a kennel and a day care facility for 

dogs. On April 1, 2008, the Buyers received a change of use permit from 

West Rockhill Township, and purchased the property on May 22, 2008. 

On February 24, 2009, the Buyers received a letter from Mr. Lippincott 

informing them that West Rockhill Township would not issue a permit for the 

barn to be used as a kennel. In contradiction to his earlier representations, 

Mr. Lippincott indicated that the Buyers could not use the barn as a kennel 

since it did not satisfy the 200 foot set back requirement. 

The Buyers thereafter sued. At trial, they claimed that Prudential was 

negligent: 1) when it allowed them to buy the property without obtaining a 

survey to ensure that the barn satisfied the township’s 200 foot setback 

requirement and would be permitted as a kennel; and 2) in drafting the 

contingency clause, which should have indicated that the purchase was 

contingent upon the Buyers’ ability to use the barn as a kennel rather than 

upon the Buyers’ ability operate a kennel anywhere on the property. The 

Buyers both testified that they would not have purchased the real estate had 

they known that the barn could not be used as a kennel. In support of their 

claim, they presented an expert witness to establish that the value of the 

real estate as a noncommercial property was $700,000. 
J-A24009-16

- 9 -

Based upon this evidence, the jury found that Prudential and Ms. 

Galanti were seventy-five percent negligent and that the Buyers were 

twenty-five percent negligent. Sotheby’s was granted summary judgment 

prior to trial, and the Sellers were granted nonsuit during trial. The jury 

awarded damages of $275,000. As a result of the Buyers’ negligence, the 

verdict was molded to $206,250.92. Countervailing post-trial motions were 

filed and denied, and judgment was entered on the verdict on September 

17, 2015. These various appeals followed.

 Appeal No. 2911 EDA 2015

The appeal at number 2911 EDA 2015 is the Buyers’ appeal from the 

judgment entered in their favor. They raise the following contentions: 

1. Did the Trial Court err by denying Plaintiffs’ post trial motion 

for “prevailing party” fees following a unanimous jury verdict in 

favor of Plaintiffs and against Defendants Prudential Fox & 

Roach and Marian Galanti (the “Prudential Defendants” under a 

“Pennsylvania Exclusive Buyer Agency Contract 05”, or in the 

alternative, by refusing to allow Plaintiff a separate action for 

recovery of attorney fees as the prevailing party?

2. Did the Trial Court err by denying Plaintiffs’ post trial motion 

for post judgment interest on the $206,250 in damages 

awarded by the jury in favor of Plaintiffs and against the 

Prudential Defendants? 

3. Did the Trial Court err by finding the contingency clause 

“Unambiguous” precluding parol evidence, dismissing Plaintiffs’ 

claims against the Duvall Defendants’ for fraudulent 

inducement, negligence and breach of contract, and denying 

Plaintiffs’ Motion for Reinstatement of the Claim and a new trial 

against the Duvalls?

Appellants’ brief at appeal number 2911 EDA 2015 at 4-5. 
J-A24009-16

- 10 -

The first issue concerns the following language in the exclusive Buyers’ 

agency agreement (“Agency Contract”) executed among Prudential and the 

Buyers: “In case of litigation or arbitration concerning this Contract, the 

Buyer and [Prudential] agree that costs and reasonable attorney fees shall 

be awarded to the prevailing party.” Pennsylvania Exclusive Buyer Agency 

Contract ’05, 9/19/02, at 2. 

Herein, liability was premised upon the theory that Prudential 

negligently fulfilled its obligations under the Agency Contract by failing to 

advise the Buyers to obtain a survey before purchasing the property to make 

sure that the kennel could be operated from the barn2and in drafting an 

incorrect contingency clause. Specifically, Ms. Galanti composed a 

contingency clause, which was approved by her superiors, that did not 

accurately reflect the contingency desired by the Buyers. Ms. Galanti made 

the agreement of sale “CONTINGENT ON TOWNSHIP AND /OR COUNTY'S 

APPROVAL FOR CHANGE OF USE ALLOWING BUYERS TO OPERATE A 

KENNEL/DOGGIE DAYCARE FROM THE PROPERTY. INCLUDING THE 

ADDING OF AN ADDITIONAL BUILDING SPACE AND /OR AN IN–LAW SUITE.” 

Agreement of Sale, 3/25/08, at 10 (emphasis added). 

The Buyers’ testimony, as confirmed by Mr. Lippincott, established 

unequivocally and absolutely that they sought to operate the kennel from 

____________________________________________

2

 The measurement by the parties themselves was inaccurate, foreclosing 

the use of the barn as a kennel beyond the internal steps. 
J-A24009-16

- 11 -

the barn, and would not have bought the property if the barn could not be 

utilized as a kennel. It was not contested that the Buyers could not operate 

a kennel from the barn. Under the contingency, as drafted by Prudential, 

the Buyers could not void the agreement of sale once they were denied a 

permit to house the dogs in the kennel, which was their desire from the 

onset. 

In the Agency Contract, Prudential agreed to use “its professional 

knowledge to make a good faith effort to locate Property as described by the 

Buyer, “to assist Buyer throughout the transaction,” and to “act at all times 

in the Buyer’s interest.” Pennsylvania Exclusive Buyer Agency Contract ’05, 

9/19/02, at 2. The jury agreed that Prudential was negligent. 

The interpretation of a contract is a question of law; our standard of 

review is de novo and our scope of review is plenary. Genaeya Corp. v. 

Harco Nat. Ins. Co., 991 A.2d 342, 346 (Pa.Super. 2010). As we 

reiterated in Ramalingam v. Keller Williams Realty Grp., Inc., 121 A.3d 

1034, 1046 (Pa.Super. 2015), the “fundamental rule in interpreting the 

meaning of a contract is to ascertain and give effect to the intent of the 

contracting parties” and the parties’ intent in an agreement “is to be 

regarded as being embodied in the writing itself.” In this case, the Agency 

Contract clearly and unambiguously granted the prevailing party in a lawsuit 

concerning the Agency Contract attorney fees. The jury’s liability finding 

was premised upon Prudential’s negligent fulfillment of its contractual 
J-A24009-16

- 12 -

obligations assumed under the Agency Contract, and the Buyers prevailed. 

Thus, the Buyers are entitled to prevailing party attorney fees under the 

terms of the accord. 

Indeed, the trial court recognized its mistake in this respect and stated 

that it “erred in its disposition of Plaintiffs’ entitlement to prevailing party 

attorney fees under their contract with Prudential and Galanti.” Trial Court 

Opinion, 10/19/15, at 34. We also observe that the issue of whether any 

party to a lawsuit substantially prevailed is left to the trial court's discretion. 

Zavatchen v. RHF Holdings, Inc., 907 A.2d 607, 610 (Pa.Super. 2006). 

We concur that, since Prudential was found 75% liable herein and the 

Buyers obtained a judgment of over $200,000, the Buyers prevailed in this 

lawsuit, and that the Buyers should have been awarded attorney fees under 

the contract language in question. 

Prudential asserts that the Buyers did not raise a cause of action under 

the Agency Contract. We must disagree. The Buyers’ claims concerned 

Prudential’s representation of them during the course of the purchase of the 

real estate in question. Although the lawsuit sounded in negligence, the 

contract provided the basis for subjecting Prudential to liability. The case 

was submitted to the jury on the ground that Prudential was negligent in 

performing the duties that it assumed in the Agency Contract, which 

required Prudential to use its professional knowledge to make a good faith 

effort to locate property suitable to the Buyers, to help them throughout the 
J-A24009-16

- 13 -

transaction, and to act in their interest. This action concerned Prudential’s 

failure to properly perform these contractual undertakings. It did not use its 

professional knowledge when it drafted an incorrect contingency clause. 

Likewise, Prudential did not help the Buyers locate suitable property because 

Prudential did not have the property surveyed to make sure that the Buyers 

could obtain a permit to use the barn as a kennel. Finally, for the above 

reasons, it did not act in the Buyers’ best interests. Without the contract, 

Prudential would have no discernable duty to the Buyers. 

Prudential also takes the position that the Buyers waived any claim for 

attorney fees. This stance is grounded upon proceedings during a pretrial 

motion in limine. In that motion, Prudential asked that the Buyers be 

precluded from asking for attorney fees. The motion did not identify, 

address, or reference the Agency Contract. The American rule provides that 

the prevailing party in a negligence case cannot recover attorney fees. 

McMullen v. Kutz, 985 A.2d 769, 612-13 (Pa. 2009) (“The general rule 

within this Commonwealth is that each side is responsible for the payment of 

its own costs and counsel fees absent bad faith or vexatious conduct. . . . 

This so-called ‘American Rule’ holds true ‘unless there is express statutory 

authorization, a clear agreement of the parties or some other established 

exception.’”). The Buyers therefore assented to the grant of a motion in 

limine as to attorney fees. However, the Buyers waived their right to 
J-A24009-16

- 14 -

attorney fees only under the American rule applicable to payment of 

attorney fees by the losing litigant in a lawsuit. 

The Buyers were not entitled to attorney fees under the Agency 

Contract prior to trial. Rather, that right arose after they won at trial and 

obtained a verdict against Prudential based upon the contract. They 

promptly raised the position that they were entitled to attorney fees under 

the Agency Contract. Thus, we conclude that there was no waiver of 

entitlement to prevailing party attorney fees under the Agency Contract, and 

in this regard, Prudential’s argument barks up the wrong tree.

In their second issue, the Buyers aver that the trial court erred in 

denying them post-trial interest.3 The trial court also conceded that it erred 

in this respect. 42 Pa.C.S. § 8101 (“Except as otherwise provided by another 

statute, a judgment for a specific sum of money shall bear interest at the 

lawful rate from the date of the verdict or award, or from the date of the 

judgment, if the judgment is not entered upon a verdict or award.”). 

Prudential does not respond to the position of the Buyers and the trial court 

that the Buyers are entitled to post-judgment interest. Hence, we remand 

for entry of an award of post-judgment interest herein. 

____________________________________________

3 The Buyers specifically abandoned their claim for pre-judgment interest. 

Appellants’ brief at No. 2911 EDA 2015 at 22 (the Buyers “originally 

complained of the Trial Court’s failure to award [their] motion for prejudgment interest, [the Buyers] now withdraw that issue from consideration 

on appeal.”)
J-A24009-16

- 15 -

Finally, the Buyers challenge the trial court’s grant of a nonsuit to the 

Sellers. 

 A nonsuit is proper only if the jury, viewing the evidence and 

all reasonable inferences arising from it in the light most 

favorable to the plaintiffs, could not reasonably conclude that 

the elements of the cause of action had been established. 

Furthermore, all conflicts in the evidence must be resolved in 

the plaintiff[s'] favor. In reviewing the evidence presented we 

must keep in mind that a jury may not be permitted to reach a 

verdict based on mere conjecture or speculation. We will 

reverse only if the trial court abused its discretion or made an 

error of law.

Barnes v. Alcoa, Inc., 145 A.3d 730, 735 (Pa.Super. 2016).

In this case, the Buyers premised their ability to recover damages 

against the Sellers on the language of the contingency clause in the 

agreement of sale. They alleged that the Sellers breached the sales 

agreement since the Buyers were unable to operate their kennel from the 

barn. The trial court concluded that the Buyers could not obtain relief 

against the Sellers since the contingency clause applied only if the Buyers 

could not operate their kennel and day care center for dogs from the 

property. Since the Buyers could run a kennel on the property, just not 

from the barn, the court reasoned that the contingency clause was not 

implicated herein. 

As noted above, since we are construing contract language, our 

standard of review is de novo and our scope of review is plenary. We repeat 

the operative language of the clause in question: The sale was 

“CONTINGENT ON TOWNSHIP AND /OR COUNTY'S APPROVAL FOR CHANGE 
J-A24009-16

- 16 -

OF USE ALLOWING BUYERS TO OPERATE A KENNEL/DOGGIE DAYCARE 

FROM THE PROPERTY. . . . .” Agreement of Sale, 3/26/08, at 10 

(emphasis added). It was not contested that the Buyers were, in fact, 

allowed to operate a kennel/doggie day care “from the property;” they 

merely were unable to use the barn for those purposes. The trial court 

found that the language “from the property” was clear and unambiguous and 

prevented recovery against the Sellers. 

On appeal, the Buyers assail the court’s finding that the contingency 

clause was unambiguous. They posit that the term “from the property” was 

reasonably susceptible to different constructions and that “the property,” in 

light of the attendant circumstances, meant “the barn.” The Buyers seek to 

use the discussions of the parties during the sale about the Buyers’ desire to 

use the barn as the kennel to interpret the term “from the property” as 

meaning “from the barn.” 

We repeat the admonition from Ramalingam, supra at 1046, that 

the parties’ intent in an agreement “is to be regarded as being embodied in 

the writing itself.” This Court is not permitted to either “assume that a 

contract's language was chosen carelessly,” or that “the parties were 

ignorant of the meaning of the language they employed.” Id. Accordingly, 

“[w]hen a writing is clear and unequivocal, its meaning must be determined 

by its contents alone.” Id. It is only if “a contract's language is ambiguous 

may extrinsic or parol evidence be considered to determine the intent of the 

parties.” Id. Language is ambiguous solely when “it is reasonably 
J-A24009-16

- 17 -

susceptible of different constructions and capable of being understood in 

more than one sense.” Id. 

In the contract language challenged herein, the word “property” is 

clear and unambiguous, and means what it says: the clause is not triggered 

unless the Buyers could not operate a kennel on the property. However, the 

Buyers were allowed to maintain a kennel on the property. Only if the word 

“property” is construed as “barn” are the Buyers entitled to prevail. Since 

the term “property” is clear and unambiguous and capable of only one 

meaning, the Buyers correctly were prevented from presenting parol and 

extrinsic evidence to the effect that the term “property” actually meant 

“barn.” Under the legal principles applicable to contract construction, the 

Buyers cannot utilize the conversations surrounding the purchase to change 

the meaning of a term that is capable of only one construction. 

Ramalingam, supra. Thus, we reject the Buyers’ position that the trial 

court erred when it prevented them from presenting parol and extrinsic 

evidence that the contingency clause was applicable if the Buyers could not 

operate a kennel from the barn. Since Buyers’ contentions are all bark and 

no bite, nonsuit therefore was properly granted to the Sellers, and the 

Buyers cannot recover against them based upon the contingency clause. 

Appeal at Number 2967 EDA 2015

The appeal at number 2967 EDA 2015 was filed by the Buyers’ real 

estate agent, Fox & Roach LP d/b/a Prudential Fox & Roach and Marian 
J-A24009-16

- 18 -

Galanti, which we continue to refer to collectively as Prudential. Prudential 

raises the following positions: 

1. Whether the trial court erred in denying Appellants, Fox & 

Roach LP d/b/a Prudential Fox & Roach and Marian Galanti’s, 

Motion for Summary Judgment, since, as a matter of law, the 

Plaintiffs were unable to prove that Fox & Roach LP breached a 

duty that was supposedly owed to the Plaintiffs or that there 

[was] a causal connection between the conduct of Fox & Roach 

LP and the alleged resulting injury sustained by the Plaintiffs to 

establish negligence? 

2. Whether the trial court erred in denying Fox & Roach LP’s 

Motion in Limine to preclude the testimony of John Hosey, since 

there was no competent evidence to establish the value of the 

property as a business use (doggy daycare)?

3. Whether the trial court erred in denying Appellants’, Fox & 

Roach LP d/b/a/ Prudential Fox & Roach and Marian Galanti’s, 

Non-Suit since the Plaintiffs failed to set forth expert testimony 

to establish a breach of duty of a professional real estate agent, 

or to prove a causal connection between Fox & Roach LP’s 

conduct and the resulting injury allegedly sustained by the 

Plainitffs during its case in chief?

4. Whether the trial court erred in denying Appellants, Fox & 

Roach LP d/b/a/ Prudential Fox & Roach and Marian Galanti’s, 

Motion for Judgment Notwithstanding the Verdict (“JNOV”) since, 

as a matter of law, the Plaintiffs failed to set forth expert 

testimony to establish a breach of duty of a professional real 

estate agent, and there was no causal connection between Fox & 

Roach LP’s conduct and the resulting injury allegedly sustained 

by the Plaintiffs to establish negligence?

5. Whether the trial court erred in charging the Jury under the 

comparative Negligence standard as opposed to Contributory 

Negligence standard since the action was not brought to recover 

damages for negligence resulting in death or injury to person or 

property?
J-A24009-16

- 19 -

6. Whether the trial court abused its discretion when it reversed 

its original decision denying Plaintiffs’ claims for “prevailing part” 

attorney’s fees and post-judgment interest? 

Appellants’ brief at number 2967 EDA 2015 at 4-5. 

The first, third, and fourth issues raised by Prudential in this appeal 

are identical. In those issues, Prudential challenges the denial of summary 

judgment, a nonsuit, and judgment notwithstanding the verdict because 1) 

there was no evidence that it breached a duty; and 2) there was no proof of 

a causal connection between its conduct and the injury sustained by the 

Buyers. Since the matter proceeded to a jury trial and a verdict was 

rendered against it, the only pertinent issue on appeal is whether Prudential 

should have been granted judgment n.o.v. As we explained in Whitaker v. 

Frankford Hosp. of City of Philadelphia, 984 A.2d 512, 517 (Pa.Super. 

2009)

Once this case proceeded to trial and Appellants presented a 

defense, the trial court's refusal to grant them summary 

judgment and a compulsory nonsuit became moot. See Gbur v. 

Golio, 932 A.2d 203 (Pa.Super. 2007); Northeast Fence & 

Iron Works, Inc. v. Murphy Quigley Co., Inc., 933 A.2d 

664, 668 (Pa.Super. 2007). Once a jury verdict in favor of 

Appellees was entered, the issue became whether the trial court 

erred in failing to grant them judgment notwithstanding the 

verdict. Gbur, supra; Northeast Fence & Iron Works, Inc., 

supra.

In the present case, the requests for summary judgment and nonsuit 

were mooted after Prudential presented a defense and the matter proceeded 

to a verdict. We thus address Prudential’s first, third, and fourth contention 

under the proper rubric, which is whether it should have been granted 
J-A24009-16

- 20 -

judgment n.o.v. Our standard of review is as follows: “An appellate court 

will reverse a trial court's grant or denial of a JNOV only when the appellate 

court finds an abuse of discretion or an error of law. Our scope of review 

with respect to whether judgment n.o.v. is appropriate is plenary[.]” 

Czimmer v. Janssen Pharm., Inc., 122 A.3d 1043, 1050 (Pa.Super. 

2015). There are two grounds upon which judgment n.o.v. can be granted: 

1) the moving party is entitled to judgment under the law; or 2) “the 

evidence was such that no two reasonable minds could disagree that the 

outcome should have been rendered in favor of the movant[.]” Id. As to 

the first basis, “a court reviews the record and concludes that even with all 

factual inferences decided adverse to the movant the law nonetheless 

requires a verdict in his favor;” under the second ground, “the court reviews 

the evidentiary record and concludes that the evidence was such that a 

verdict for the movant was beyond peradventure.” Id. 

As noted, Prudential raises two positions in support of its claimed 

entitlement to judgment n.o.v. First, it avers that it owed no duty to the 

Buyers herein. The Buyers’ evidence established that Prudential knew that 

the Buyers were unwilling to buy the property unless the barn could be used 

as the kennel. Prudential improperly drafted the contingency clause so that 

the sale was not contingent upon the kennel being operated from the barn; 

instead, the language drafted by Ms. Galanti and approved by her supervisor 

indicated that the sale would be secure if a kennel could be operated from 
J-A24009-16

- 21 -

the property. Ms. Hensley stated that she relied upon Prudential to draft a 

contingency clause that protected her interests, and Mr. Greisiger testified 

that he specifically asked Ms. Galanti about the clause and she assured him 

that it would protect them from having to keep the property if the barn could 

not be used as a kennel. 

Restatement (Second) of Torts § 323, negligent performance of an 

undertaking to render services, imposes a duty upon Prudential under the 

proof presented by the Buyers. 

One who undertakes, gratuitously or for consideration, to render 

services to another which he should recognize as necessary for 

the protection of the other's person or things, is subject to 

liability to the other for physical harm resulting from his failure 

to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of 

such harm, or

(b) the harm is suffered because of the other's reliance 

upon the undertaking.

Restatement (Second) of Torts § 323. See Evans v. Otis Elevator Co.,

168 A.2d 573 (Pa. 1961); see also Feld v. Merriam, 485 A.2d 742, 746 

(Pa. 1984) (Restatement (Second) of Torts § 323 has been adopted “as an 

accurate statement of the law in this Commonwealth.”); accord Bruno v. 

Erie Ins. Co., 106 A.3d 48, 69 (Pa. 2014) (“our Court has long recognized 

that a party to a contract may be found liable in tort for negligently 

performing contractual obligations and thereby causing injury or other harm 

to another contracting party”). 
J-A24009-16

- 22 -

Herein, there was sufficient evidence to support the jury’s finding that 

Prudential breached its contractual undertaking by drafting a deficient 

contingency clause and allowing consummation of a purchase of property 

that was not acceptable to the Buyers. It did not properly assist the Buyers 

throughout the transaction, nor act in their best interests since it allowed 

them to buy the property without securing a survey to ensure that the barn 

could be used as a kennel and it drafted a contingency clause with imprecise 

language. 

Prudential maintains that the Buyers cannot establish that it breached 

its duty or caused the Buyers harm because the Buyers knew that they could 

have obtained a survey to ensure that the barn satisfied the 200 foot setback for use as a kennel. Prudential fails to appreciate that the contract 

placed the burden on it to use its professional knowledge to secure property 

acceptable to the Buyers and to assist Buyer throughout the transaction in 

securing the acceptable property. Under the pertinent contract language, 

Prudential should have advised the Buyers to obtain a survey before the 

Buyers executed the agreement of sale in order to ensure that the barn 

could be used as a kennel, which Prudential knew was the condition for the 

purchase in question. The fact that the Buyers also were aware that they 

could obtain a survey does not erase the existence of a duty by Prudential. 

The Buyers, under the contract language, were permitted to rely upon 

Prudential, which agreed to aid them throughout the process and secure a 
J-A24009-16

- 23 -

property acceptable to them. Under the contract, it was Prudential’s 

responsibility to protect the Buyers’ interest and to tell them to obtain a 

survey. Additionally, the failure to obtain a survey caused the Buyers’ harm 

in that the survey would have alerted the Buyers to the fact that the barn 

did not meet the setback requirements and they would not have purchased 

the property because it was not acceptable to them. Likewise, under the 

contract, the responsibility to draft a contingency clause that protected the 

Buyers was Prudential’s. 

In arguing that there was no duty and that the evidence failed to 

prove that its conduct caused the Buyers injury, Prudential also relies upon 

the fact that the Buyers knew that one of the measurements taken before 

the agreement was signed indicated that the barn was 196 feet from the 

property line. However, Mr. Greisiger explained that there were steps inside 

the barn, and he was assured by Mr. Duvall and Mr. Lippincott that, so long 

as the dog enclosures were placed beyond the stairwell, the 200 foot set 

back would be satisfied. That advice was incorrect. Prudential contractually 

assumed the responsibility to ensure that this advice was proper. We thus 

reject this position.

Prudential also maintains that the Buyers were required to present 

expert testimony to prove that it “deviated from any standard of conduct.” 

Appellants’ brief at 2967 EDA 2015 at 18. It posits that, since it was a 

professional real estate agent, an expert witness was required to outlined its 
J-A24009-16

- 24 -

standard of care and its breach of the standard of care applicable to 

professional real estate agents. The fact that defendant is a professional 

does not, in and of itself, mandate that a plaintiff present expert testimony 

on breach of a standard of care. Cipriani v. Sun Pipe Line Co., 574 A.2d 

706, 710 (Pa.Super. 1990). To the contrary, “expert testimony is not 

required when the matter under consideration is simple and the lack of 

ordinary care is obvious and within the range of comprehension of the 

average juror.” Id.; accord Brannan v. Lankenau Hosp., 417 A.2d 196, 

201 (Pa. 1980) (reversing nonsuit granted to hospital based on lack of 

expert testimony because “the matter under investigation [was] so simple, 

and the lack of skill or want of care so obvious, as to be within the range of 

ordinary experience and comprehension of even non professional persons.”

Herein, expert testimony was not needed in order to establish that 

Prudential’s conduct was negligent since that negligence was obvious and 

within the range of comprehension of the average juror. Prudential knew 

that the Buyers desired to buy the property only if the kennel could be 

placed in the barn and drafted a contingency clause that did not articulate 

this desire. It failed to advise the Buyers to obtain a survey when that 

survey would have revealed that the barn did not satisfy the township’s 200 

foot set back requirement. Prudential’s lack of care was within the 

comprehension of the ordinary lay person, and expert testimony was not 

needed herein. Cipriani, supra. Likewise, we reject Prudential’s claim that 
J-A24009-16

- 25 -

expert testimony was needed to establish causation. Due to the lack of 

survey and improper language in the contingency clause, the Buyers could 

not place their kennel in the barn, and they were willing to purchase the 

property only if they could.4 

In conclusion, our review of the record indicates that the law does not 

mandate entry of judgment n.o.v. in favor of Prudential on the asserted 

grounds. Additionally, that review confirms that a verdict in its favor was 

not beyond peradventure. Hence, the trial court did not abuse its discretion 

or commit an error of law in denying Prudential’s request for judgment 

n.o.v.

We now examine Prudential’s second position, which is that the trial 

court erroneously denied its motion in limine to preclude the Buyers’ expert 

testimony of John Hosey, who testified as to their damages. As we observed 

in Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa.Super. 2014), a “motion 

in limine is used before trial to obtain a ruling on the admissibility of 

evidence” and accords “the trial judge the opportunity to weigh potentially 

prejudicial and harmful evidence before the trial occurs[.]” The “trial court's 

____________________________________________

4

Prudential also suggests that the Buyers cannot recover herein since they 

were given a permit to operate a kennel. However, it was not contested that 

a kennel could be operated from the property. While they had a permit to 

run a kennel, they were told by the township after they purchased the real 

estate that they could not use the barn to house the dogs, and the barn 

would not be issued a permit to be operated as a kennel. Hence, this 

position is a red herring. 
J-A24009-16

- 26 -

decision to grant or deny a motion in limine is subject to an evidentiary 

abuse of discretion standard of review.” Id. A decision about whether 

evidence is admissible is “within the sound discretion of the trial court, and 

we will not reverse the court's decision absent a clear abuse of discretion.” 

Id. “An abuse of discretion may not be found merely because an appellate 

court might have reached a different conclusion, but requires a manifest 

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of 

support so as to be clearly erroneous.” Id. 

Mr. Hosey’s valuation of the property was based upon the assumption 

that it was a noncommercial property, i.e., that a business could not be 

operated on it. Since the property could have been used as a kennel, 

Prudential postulates that Mr. Hosey’s opinion, which was that the property 

was worth only $700,000 as noncommercial real estate, did not constitute 

the proper measure of damages herein. 

We conclude that Mr. Hosey’s testimony was properly admitted. Since 

the Buyers did not intend to buy the property absent the ability to use the 

barn as a kennel, its worth to them after purchase was only as a 

noncommercial property because they could not, in fact, use the barn as a 

kennel. Simply put, when the Buyers bought the property, it did not have a 

commercial value to them because their sole purpose in purchasing it was to 

operate a kennel in the barn. Mr. Hosey therefore correctly valued the 
J-A24009-16

- 27 -

property as a noncommercial property. We perceive no abuse of discretion 

in the trial court’s decision to allow him to testify. 

Prudential next notes that the Buyers originally asserted that it was 

negligent in failing to obtain a survey and that the fair market value of the 

property would have been the same regardless of whether a survey was 

obtained. Prudential is being deliberately obtuse. This lawsuit was not just 

about the failure to obtain a survey. The Buyers also premised liability 

herein upon the fact that Prudential improperly drafted the contingency 

clause so that the Buyers could not void the transaction once the permit to 

use the barn as a kennel was declined. 

Our Supreme Court observed in In re Brooks Bldg., 137 A.2d 273, 

274 (Pa. 1958), “[M]arket value has been defined as the price which a 

purchaser, willing but not obliged to buy, would pay an owner, willing but 

not obliged to sell, taking into consideration all uses to which the property is 

adapted and might in reason be applied.” In this case, the damages sought 

were not based upon the fact that the Buyers paid more than “fair market 

value” for the property than it was actually worth. Rather, the Buyers’ claim 

was that its fair market value to them was not as a commercial property 

since they could not operate their kennel in the barn. At trial, Mr. Hosey 

appropriately described the measure of damages flowing to the Buyers due 

to their inability to operate a kennel on the property in the state that it 

existed when it was purchased. To them, it was not a commercial property. 
J-A24009-16

- 28 -

We therefore reject Prudential’s challenge to the trial court’s decision to 

allow Mr. Hosey’s testimony into evidence.

Prudential’s fifth issue on appeal is that the trial court “erred in 

charging the Jury under the Comparative Negligence standard as opposed to 

Contributory Negligence standard since the action was not brought to 

recover damages for negligence resulting in death of injury to person or 

property.” Appellants’ brief at 2967 EDA 2015, at 36. We agree with the 

trial court and with the Buyers that this issue has been waived. 

While Prudential did proffer a written jury instruction on contributory 

negligence at the court charging conference, the trial court expressly stated 

to the parties that it planned to give the jury a comparative negligence 

instruction. Prudential failed to raise any objection to the court’s proposal 

during that proceeding. Then, at trial, prior to the charging the jury, the 

court articulated:

THE COURT: Mitigation does not apply, so there will be no 

mitigation of damages charge. It's a comparative negligence 

case. I don't believe the facts in this case are the type of facts 

that give rise to mitigation. In a mitigation charge, for example, 

classically it's the witness was told to go to a doctor and they 

didn't go to a doctor for a follow-up procedure, and something 

occurred. This is clearly not the case here. I don't think it's 

analogous. 

So there will be no mitigation of damages charge. This is 

strictly a comparative negligence case. 

N.T. Trial, 6/11/15, at 3 (emphases added). No objection was raised to this 

statement. 
J-A24009-16

- 29 -

Thereafter, in accordance with its expressed intent at the charging 

conference and at trial before instructing the jury, the trial court instructed 

the jury that it had to find whether Prudential was negligent and whether the 

Buyers were negligent, and it defined negligence. The court then reviewed 

with the jury the special interrogatories that the jury had to answer. The 

questions included whether the Buyers were negligent and whether 

Prudential was negligent. Next, the court outlined question number five 

stating, “This is called the comparative question.” Id. at 57. The court 

explained:

You have now, if you get to question number five, 

determined that the plaintiff is negligent and caused harm and 

the defendant was negligent and caused harm, but now you’re 

given the task of comparing their negligence. 

 You will assign a percentage of negligence, the impact that 

that particular negligence may have had, as long as you divide it 

any way you want among all parties that you find were negligent 

in cause. . . . So whatever you assign to the parties, as long as 

the total is 100 percent in your determination of the 

comparative negligence, you have answered this question, 

okay? 

Id. at 57-58 (emphasis added). 

At the conclusion of the charge, the trial court told the jury that it was 

“going to ask the attorneys if there’s anything at this point in time they wish 

me to clarify.” Id. at 60. Prudential’s lawyer affirmatively represented, 

“Nothing, Your Honor.” Id. After the Buyers’ attorney was asked, a sidebar was held, where the court again queried if there were “[a]ny objections 

to the charge?” Id. at 62. Prudential did not raise an objection. The trial 
J-A24009-16

- 30 -

court informed the jury, “I’m pleased to report there are no objections to my 

charge at this point in time.” Id. at 63. 

Based on this state of the record, the trial court opined that Prudential 

“waived the issue of this court’s jury instructions regarding comparative 

versus contributory negligence by failing to object to an instruction on 

comparative negligence at trial.” Trial Court Opinion, 2/1/16, at 22. We 

agree with this position. At the charging conference, there was no objection 

when the court indicated that it believed that this case was a comparative 

negligence case. Next, Prudential had four opportunities to object to the 

comparative negligence charge during the instructions to the jury. It never 

offered the trial court an opportunity to correct any error in charging the jury 

on comparative rather than contributory negligence. 

We recognize that dissemination of a jury charge, as Prudential did in 

the present case, is normally sufficient to preserve a challenge to the 

charge. However, we find the case of Thomas Jefferson Univ. v. 

Wapner, 903 A.2d 565, 570 (Pa.Super. 2006), dispositive. Therein, a party 

requested an instruction, the trial court then discussed each instruction 

proffered to it, and the court indicated that it would not disseminate the 

requested instruction. The party failed to object, acquiescing in the court’s 

ruling. We concluded that the question of whether the instruction should 

have been given was not preserved since the party “agreed not to pursue 
J-A24009-16

- 31 -

the instruction it initially proffered, despite the clear opportunity and ability 

to do so.” Id. at 571 (footnote omitted). 

In the present case, Prudential had numerous opportunities to have 

the court correct any error in the charge in connection with the comparative 

versus contributory negligence question. The purpose behind the 

requirement that a party object to trial court error is simple. It accords the 

trial court the opportunity to correct any error and avoid another trial. 

Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114 (Pa. 1974). This 

precept certainly applies herein, where Prudential was given four chances at 

trial to point out to the court that his case was one involving contributory 

rather than comparative negligence. This error could have been avoided by 

an objection. It therefore has waived its allegation of error in this respect. 

Thomas Jefferson, supra. 

Prudential’s final issue in this appeal is that the Buyers waived their 

request for attorney fees. This position was discussed and rejected in the 

Buyers’ appeal at 2911 EDA 2015. Hence, we need not address it further.

Appeal Numbers 3098 and 3099 EDA 2015

The appeal at number 3098 EDA 2015 was filed by the Sellers, Donald 

and Bernice Duvall, and the same appeal was assigned docket number 3099 

EDA 2015, which we will dismiss as duplicative. In this cross-appeal, the 

Sellers raise the following issues: 

1. Did the Trial Court err in denying the Motion for Summary 

Judgment filed by Appellees, Donald and Bernice Duvall?
J-A24009-16

- 32 -

2. Did the Trial Court err in granting the Motion for Summary 

Judgment filed by Appellants, Kurfiss Sotheby's International 

Realty, George H. Wells and James Fingleton and dismissing 

said parties from the case, with prejudice?

3. Did the Trial Court err in denying the Motion in Limine filed by 

Appellees, Donald Duvall and Bernice Duvall, to preclude the 

testimony of John Hosey?

4. Did the Trial Court correctly grant the Motion in Limine as to 

the Gist of the Action Doctrine and Parol Evidence Rule filed 

by Appellees, Donald Duvall and Bernice Duvall?

5. Did the Trial Court correctly grant the Motion for Nonsuit filed 

by Appellees, Donald Duvall and Bernice Duvall?

Appellants’ brief at No. 3098 EDA 2015 at 2-3. 

The Sellers first maintain that they should have been granted 

summary judgment prior to trial. The Sellers next argue that their agent, 

Sotheby’s, was improperly granted summary judgment since the Sellers had 

a cross-claim for indemnification pending against Sotheby’s. Id. at 22. The 

Sellers’ third position is that the trial court should have granted their motion 

in limine to preclude the testimony of John Hosey. The first three issues 

have been mooted by the grant of nonsuit in the Sellers’ favor, which we 

have affirmed.5 The Sellers were not aggrieved by the decisions challenged 

in issues four and five, and therefore cannot contest them on appeal. See 

Pa.R.A.P. 501 (“Except where the right of appeal is enlarged by statute, any 

____________________________________________

5

 We note that the Sellers have not presented a claim for attorney fees 

against the Buyers or Prudential herein. 
J-A24009-16

- 33 -

party who is aggrieved by an appealable order, or a fiduciary whose estate 

or trust is so aggrieved, may appeal therefrom.”). This protective crossappeal is therefore dismissed. 

At appeal number 2911 EDA 2015, we affirm the judgment, but 

remand for the calculation of attorney fees to be awarded to Carole Anne 

Hensley and John R. Greisiger against Prudential Fox & Roach and Marian 

Galanti, and for imposition of post-judgment interest on the jury verdict. In 

appeal number 2911 EDA 2015, we affirm the grant of nonsuit in favor of 

Donald and Bernice A. Duvall. At appeal numbers 2967 EDA 2015 and 3098 

EDA 2015, we affirm the judgment. The appeal at 3099 EDA 2015 is 

dismissed as duplicative of appeal number 3098 EDA 2015, which is 

dismissed as moot. Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/2017